Foster and Jurchenko
[2016] FamCAFC 110
•24 June 2016
FAMILY COURT OF AUSTRALIA
| FOSTER & JURCHENKO | [2016] FamCAFC 110 |
| FAMILY LAW – APPEAL – COSTS – Appeal deemed abandoned for failure to file appeal books – No submissions filed in response to the application for costs – Order for the appellant to pay the respondent’s costs in fixed sums. |
| Family Law Act 1975 (Cth) – s 94AAA(3), s 117 Family Law Rules 2004 (Cth) – r 1.14, r 22.43 |
| APPELLANT: | Mr Foster |
| RESPONDENT: | Ms Jurchenko |
| FILE NUMBER: | PTW | 6320 | of | 2011 |
| APPEAL NUMBER: | WA | 5 | of | 2015 |
| DATE DELIVERED: | 24 June 2016 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | By written submissions |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 16 January 2015 |
| LOWER COURT MNC: | [2015] FCWAM 11 |
REPRESENTATION
| THE APPELLANT: | Self-represented |
| THE RESPONDENT: | Terrace Law |
Orders
The time in which the respondent had to apply for costs of the abandoned appeal be extended to 9 October 2015.
Within 28 days, the appellant pay the respondent’s costs of the appeal, fixed in the sum of $1,800.
Within 28 days, the appellant pay the respondent’s cost of the application for costs fixed in the sum of $500.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Foster & Jurchenko has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 5 of 2015
File Number: PTW 6320 of 2011
| Mr Foster |
Appellant
And
| Ms Jurchenko |
Respondent
REASONS FOR JUDGMENT
Ms Jurchenko (“the mother”) has applied for costs in relation to an appeal by Mr Foster (“the father”), which has been abandoned.
The hearing of the appeal was delegated to me pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
After the application for costs was filed, I made orders for the filing of submissions, on the basis that I would determine the matter on the papers. The mother filed her submissions, but the father failed to respond. His solicitors have also filed a Notice of Ceasing to Act.
Background
The mother and father have been litigating over their daughter since 2011.
The mother applied for permission to change the place of residence of the child from Perth to the Pilbara region, but her application was dismissed in November 2013. The mother successfully appealed to the Full Court of the Family Court of Australia and the matter was remitted for a new hearing.
The rehearing took place in December 2014. In January 2015, judgment was delivered pursuant to which the mother was given permission to relocate.
On 13 February 2015, the father lodged an appeal, at which time both parties were represented. The appeal was ultimately deemed abandoned after the father failed to file his appeal books.
Should the delay be excused?
Rule 22.43 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that if an appeal is abandoned, the appellant may be ordered to pay the respondent’s costs. The rule provides that an application for costs must be filed within 28 days after the date the appeal was abandoned.
The 28-day time period within which the application for costs should have been filed expired on 2 October 2015. On that day, the mother’s solicitors sought to file the application, but due to mistakes in the registry, the application was not filed until 9 October 2015.
Pursuant to r 1.14 of the Rules, the court may extend a period of time fixed under the Rules. In the circumstances, it is appropriate that an extension of time be granted, as the delay was the fault of the court not the mother.
Should costs be ordered?
The mother’s submissions draw attention to the fact that s 117(1) of the Act provides that, subject to s 117(2), each party to proceedings should bear their own costs. However, s 117(2) provides that the court may order costs to be paid if it considers there are circumstances that justify it in doing so.
The mother’s submissions address all of the relevant factors under s 117(2A), and the father has not filed any submissions in reply. In my view, the mother’s submissions clearly establish that there are circumstances that justify an order for costs. In particular, the mother was put to unnecessary expense as a result of the father instituting an appeal which he then did not pursue.
What is the appropriate quantum?
The mother provided an itemised schedule of costs incurred in relation to the abandoned appeal. The schedule indicated that a total amount of $1,800 was incurred. The account was prepared on the basis of a charge out rate of $250 per hour. In the absence of any submissions by the father, the amount claimed appears to be reasonable.
The mother also seeks a further $500 for the preparation and filing of her six pages of detailed submissions. Again, in my view, that amount is proper.
The court’s order
For these reasons, there will be orders in the terms set out above.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 24 June 2016.
Associate:
Date: 24 June 2016
0
0
2