Franco & Daley (No 2)
[2024] FedCFamC1F 20
•23 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Franco & Daley (No 2) [2024] FedCFamC1F 20
File number(s): MLC 9994 of 2020 Judgment of: MCNAB J Date of judgment: 23 January 2024 Catchwords: FAMILY LAW – PARENTING –COSTS – Application for a stay – application seeks orders in relation to matters dealt with on a trial basis – application dismissed – indemnity costs ordered by reason of the unreasonable conduct of the applicant. Legislation: Family Law Act 1975 (Cth) ss 117, s 1172A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth))
Cases cited: Kohan & Kohan [1992] FamCA 116; (1993) FLC 92–340
Prantage & Prantage (2013) FLC 93–544; [2013] FamCAFC 105
Stasiuk & Guild [2021] FamCAFC 62
Division: Division 1 First Instance Number of paragraphs: 14 Date of last submission/s: 23 January 2024 Date of hearing: 23 January 2024 Place: Melbourne The Applicant: Litigant in Person Counsel for the First Respondent: Mr MacDonald Solicitor for the First Respondent: Pearsons Lawyers Pty Ltd Counsel for the Second Respondent: Ms Clark Solicitor for the Second Respondent Blackwood Family Lawyers Counsel for the Independent Children’s Lawyer Mr Dunstan Solicitor for the Independent Children’s Lawyer Bowlen Dunstan And Associates Pty ORDERS
MLC 9994 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DALEY
ApplicantAND: MS FRANCO
First RespondentMR DALEY
Second Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
23 JANUARY 2024
THE COURT ORDERS THAT:
1.The applicant mother’s Application in a Proceeding filed 5 January 2024 be dismissed.
2.The applicant mother pay the costs of the first respondent maternal grandmother fixed in the sum of $3,750.
3.The applicant mother pay the costs of the second respondent father fixed in the sum of $9,000.
4.The costs ordered in paragraphs 2 and 3 herein be paid from the applicant mother’s final property settlement ordered on 8 December 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Franco & Daley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE
(Revised from Transcript)McNab J
BACKGROUND
On 8 December 2023, the Court made final orders in respect of parenting and property and reserved the question of costs and invited submissions in relation to costs. On 2 January 2024, the applicant mother filed a Notice of Appeal. That Notice of Appeal was subsequently struck out by reason of orders of a Registrar on 12 January 2024, and the orders provide:
1.The Notice of Appeal filed on 2 January 2024 is struck out and, in default of an Amended Notice of Appeal being filed no later than 4.00pm on 2 February 2024, the appeal is summarily dismissed.
2.The Application in an Appeal filed on 2 January 2024 is summarily dismissed.
APPLICATION IN A PROCEEDING FILED 5 JANUARY 2024
On 5 January 2024, the applicant mother filed an Application in a Proceeding, that is, the proceeding before me, seeking orders in these terms (quoted exactly):
1.I seek litigation funding to support my appeal, and to secure costs for future family law matters that remain unresolved at trial and identified the need for my appeal, I request $80,000 (minimum).
2. Stay in the current trial orders dated 8 Dec 2023
3. Revert to Judge Carter orders dated 9 Feb 2023.
4. Spousal maintenance of $500 per week.
5.The ability to access my children unsupervised such as their school. This will lessen the burden of paid supervision when I cannot afford make-up time due to supervisor withdrawal.
6. Any other orders the Court deems appropriate to prepare me for an appeal and enduring application in a proceeding, as [Ms Franco] contravenes orders that remain unresolved.
7. The court notes I reserve my right to future costs against the parties and adjustment to my application when I am able to access adequate legal support.
The mother filed an affidavit in support of her application on 5 January 2024.
The mother also filed an affidavit of 20 January 2024, which I do not receive. She stated in submissions that she wished to rely on it for the purposes of satisfying the order of the Court of 8 December 2023 in relation to property, which made provision for the mother to file submissions in relation to costs in reply by 19 January 2024. The material that she has raised in her affidavit does not constitute submissions for the purposes of that order and largely deals with matters that occurred prior to judgment being delivered and that are canvassed in the judgment.
In relation to the application of 5 January 2024, the fact is that I have dealt with this matter on a final basis and any application in relation to funding, etc, is a matter to be dealt with in any appeal should that proceed. As to the application to stay the trial orders, no sufficient basis has been put before me to satisfy me that that is appropriate in the interests of justice to do so. The mother has provided no proper basis for a stay. The mother simply, in her submissions, says that she wants a stay of all orders. She wants to revert to the orders of Carter J but cannot specify which orders because she says that she has not had the benefit of legal advice. That is not a proper foundation for a grant of a stay. Furthermore, the grounds of appeal are not clear at this point, because the grounds that she was relying on have been struck out, and, effectively, there is no appeal before the Court at present.
As to an application for spousal maintenance, an application was made in the proceeding and that was dismissed. The application in relation to the children spending unsupervised time at their school was a matter that was dealt with at trial. The balance of the orders are not formulated in a way that I can deal with sensibly, but in any case, I am not minded to make any further orders in the circumstances, particularly where I have delivered final orders in the case. The matters raised by the mother in her affidavit in support are matters that she must deal with on appeal, including any application to receive fresh evidence.
In those circumstances, I dismiss the application filed on 5 January 2024.
COSTS
Each of the first and second respondents seek costs, and they seek costs on an indemnity basis. This application was brought on at the insistence of the applicant mother. She has corresponded with the Court; both with the appeal registrar who dealt with the Notice of Appeal on 12 January 2024 and there have also been emails written to the Court effectively demanding that this matter be listed urgently. The Court has, from 13 January 2024 until this day, received 13 emails from the mother. Often, those have been emails where she was responding to matters raised by one of the other parties, but still, these are matters that the Court has had to deal with, and the mother has corresponded with the Court - not simply to Chambers but the Court generally - in order to get this matter listed on an urgent basis.
The mother has been on notice by correspondence written by the solicitors for the first and second respondents that they would be seeking costs on an indemnity basis and clearly put the mother on notice as to why the application was brought without proper basis. In particular, there is a letter from the solicitors for the father, Blackwood Lawyers, on 9 January 2024 which sets out the grounds on which they say that the Application in a Proceeding had no reasonable prospects of success and to put the applicant mother on notice that they would be seeking costs on an indemnity basis. Similarly, the solicitors for the grandmother have raised the question of their costs and the unreasonableness of the mother’s conduct in this application.
This is one of these cases where indemnity costs are warranted. Indemnity costs are rarely ordered. It is only in very particular circumstances where that arises, but this is one of those cases.[1] This is a case where the mother is aware of the financial circumstances of the grandmother and her capacity to fund this litigation, that she has limited funds, and indeed, the submissions that were filed by the grandmother indicate that she is not entitled to government benefits and is solely reliant on a modest income, which is of about $23,000 per annum from rent, dividends and managed funds. The grandmother receives child support from the mother but that has not been paid and is currently in arrears in the sum of $9,764.88 as at 3 November 2023, and the grandmother has assumed financial responsibility for the two children for an extended period.
[1]Kohan & Kohan [1992] FamCA 116;(1993) FLC 92–340, recently affirmed in Stasiuk & Guild [2021] FamCAFC 62; Indemnity costs are restricted to ‘an exceedingly rare situation’ see Murphy J noted in Prantage & Prantage (2013) FLC 93–544; [2013] FamCAFC 105 at [152].
In relation to the father, the father is not impecunious, but whatever income he is receiving would seem to be largely assumed by the very substantial costs that he has had to meet in dealing with the principal proceeding and these types of applications, and, even with an income of in excess of $350,000 per annum, the costs that he has been required to pay from after-tax earnings are, frankly, ruinous.
In relation to s 1172A of the Family Law Act 1975 (Cth) (“the Act”) I take into account those matters in terms of the financial circumstances of the parties. The mother has had employment over a long period of time, and that employment ceased effectively on the last day of the trial. So, she has a longstanding history of employment and capacity for employment but is apparently now unemployed, but impecuniosity is not a reason not to make a costs order. The applicant mother has been on notice of the fact that an application of this kind would be made and has had the opportunity to withdraw from the application and has chosen not to. The matters that she raises by the application are clearly matters which are more appropriately dealt with on appeal, if the appeal proceeds.
The mother has been wholly unsuccessful in this application and given the volume of material that has been produced by way of emails and the lengthy affidavits that are filed, this is a matter where the scale of costs does not adequately deal with the costs incurred.
In those circumstances, I will make an order that the mother pay the costs of the maternal grandmother, the first respondent, the sum of $3,750 and I am satisfied that those costs reflect the rate which is being charged by the solicitor for the grandmother at $495 an hour plus GST. I have been informed of the basis of the costs agreement by Mr MacDonald, who is a solicitor, and I accept that information and in terms of the costs of the second respondent, I will make an order that the mother pay the costs of the second respondent fixed in the sum of $9,000.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 29 January 2024
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