Harries and Harries (Costs)
[2012] FamCAFC 28
•29 February 2012
FAMILY COURT OF AUSTRALIA
| HARRIES & HARRIES (COSTS) | [2012] FamCAFC 28 |
| FAMILY LAW – APPEAL – Costs of unsuccessful appeal – Where the unsuccessful appellant father is now deceased – Where although no correspondence received as to the current position of the father’s estate, judgment can be given as the application for costs was that of the mother – Where while the appeal was dismissed there are no justifying circumstances to make an order for costs – Where the appeal was not without merit and involved serious consequences for the parties and the children. |
| Family Law Act 1975 (Cth) s 94; s 117 Family Law (Child Abduction Convention) Regulations 1986 (Cth) r 14(2) Family Law Rules 2004 (Cth) |
| Farland & Farland (Costs) [2010] FamCAFC 28 Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123 Penfold v Penfold (1980) 144 CLR 311 |
| APPELLANT: | Mr Harries |
| RESPONDENT: | Mrs Harries |
| FILE NUMBER: | SYC | 4565 | of | 2010 |
| APPEAL NUMBER: | EA | 6 | of | 2011 |
| DATE DELIVERED: | 29 February 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & Johnston JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 December 2010 |
| LOWER COURT MNC: | [2010] FamCA 1129 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Livingstone |
| SOLICITOR FOR THE RESPONDENT: | Watson & Watson Solicitors |
Orders
There be no order as to costs of the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harries & Harries has been approved by the Chief Justice 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 Number: EA 6 of 2011
File Number: SYC 4565 of 2010
| Mr Harries |
Appellant
And
| Mrs Harries |
Respondent
REASONS FOR JUDGMENT
Introduction
On 24 May 2011 the Full Court dismissed the father’s appeal against the orders of Le Poer Trench J made 10 December 2010. In those orders his Honour declined to make an order for the return of the parties children, K and C, then aged 3 and a half and 13 months, to Canada pursuant to the Family Law (Child Abduction Convention) Regulations1986 (Cth) (“the Regulations”). The trial judge was satisfied that such return would expose the children to grave risk as defined in the Regulations.
In dismissing the appeal, orders were made granting the parties liberty to file written submissions as to costs of and incidental to the appeal. Both parties filed submissions in accordance with the orders. For reasons which are explained later the mother’s submissions in reply, although received and considered by us, have not been filed.
The mother asks that an order for costs be made in her favour on a party/party basis. The father opposed the mother’s application for costs, and asked that each party pay their own costs.
The father is now deceased.
Background
The mother is an Australian citizen and the father Canadian. The parties’ eldest child was born in Australia and the youngest child was born in Canada.
At the trial the mother submitted that the father had consented to the children being retained in Australia and claimed that there was grave risk that the return of the children to Canada would expose them to physical and psychological harm or otherwise place the children in an intolerable situation. The basis of the risk was the mother’s precarious mental health.
The father brought the appeal in his own right, rather than through the Director-General. The mother did not oppose the father’s standing to bring the appeal. We were satisfied that the mother was correct not to oppose the father’s ability to appeal, having regard to the amendment in 2007 of sub-regulation 14(2) of the Regulations and the terms of s 94 of the Family Law Act 1975 (Cth) (“the Act”).
On appeal the father submitted that the trial judge erred in finding such a risk to the children, and in his discretion not to order the children’s return. It was also argued that his Honour denied the father procedural fairness in allowing additional medical evidence to be adduced without giving the father reasonable opportunity to obtain evidence in response and for failing to give reasons for admitting that evidence. As stated previously, the appeal was dismissed with provision made for the filing of written submissions as to costs.
The mother filed submissions as to costs on 7 June 2011 and amended written submissions on 8 June 2011. The father filed his written submissions in response on 5 July 2011.
Pursuant to the orders made by the Full Court the mother’s submissions in reply were due on 12 July 2011. On 18 July 2011 the Registry received by way of facsimile the mother’s submissions in reply.
On 26 July 2011 Registrar H wrote to the parties advising that the Registry had received the submissions and that they were not accepted for filing as they were out of time. The parties were advised that “written consent to file the submissions after the due date is required, or an application seeking an extension of time with an affidavit in support” was required.
On 22 August 2011 we were advised by way of a joint letter from the parties’ solicitors that the father had “been killed as a result of a motor vehicle accident in Canada”.
On 30 August 2011 Registrar H wrote to the parties’ solicitors enquiring as to whether the mother sought to pursue her application for costs.
On 8 September 2011 the wife’s solicitors wrote to the Registrar. That letter provided:
…
We refer to your letter of 30 August 2011
We attach a copy of our most recent letter to Watts McCray Lawyers. The writer has discussed this matter with Mr Malcolm Gittoes-Caesar of Watts McCray. Mr Gittoes-Caesar was attempting to obtain instructions from the Appellant’s family in Canada. He is not sure, at this stage, whether he will receive instructions.
The Respondent wishes to proceed with her Costs Application and awaits the consent of the Appellant to the late filing of Submissions.
It appears that nothing can occur until Mr Gittoes-Caesar determined whether or not he is instructed. At the date of dictation, we are not aware that any legal representative of the now deceased Appellant has been appointed.
The court has received no further correspondence from either party. As we have determined to make no order as to costs it seems unnecessary to require the estate to take any further steps.
Relevant law
There is no presumption in this court that the successful party will receive an order in their favour for the other party to pay their costs. The court is at liberty to make an order for costs only where there are justifying circumstances. There is nothing to prevent any one factor being the sole determinant for an order of costs (see Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123).
The principles in relation to the discretion to order costs are well settled. Section 117 of the Act contains the legislative provisions:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus placed on an applicant who seeks an order for costs (see Penfold v Penfold (1980) 144 CLR 311).
In this case, the subject of the litigation being the children and the nature of the litigation, proceedings pursuant to the Hague Convention, are important elements.
Submissions of the mother
In the written submissions filed on behalf of the mother counsel submitted that an order for costs should be made against the father given the financial circumstances of the parties and that the father was wholly unsuccessful in the proceedings. It was also submitted that such an order should be made given the conduct of the father in the proceedings and his failure to comply with previous orders.
As to the parties’ respective financial circumstances it was said that the mother was “employed full time in the care of her young children”. It was explained that the mother does not receive any financial or child support from the father. She has no property other than her personal effects.
It was also explained that the mother “was forced to meet all her own costs at trial and in the Full Court. As a result of the way in which the Convention operated the [father] was placed in a superior position, financially, to that of the [mother]”. It was said that she was reliant on the financial support of her own father to pay her considerable legal expenses.
In comparison it was said that the father was “an articled lawyer with excellent prospects as part of the top fraction of law students”. Counsel explained that the father was holding a number of cheques from the Canadian Social Security Department payable to the mother.
In regard to the submission that an order for costs should be made as the father was wholly unsuccessful, it was submitted, at paragraph 6 of the mother’s written submissions:
When an aggrieved party elects to appeal the general rule expressed in s 117(1) will not be as relevant as in a case where a litigant places a dispute before the Court on just one occasion, at trial Farland & Farland (Costs) [2010] FamCAFC 28 at [3] per Warnick J where His Honour said:
An appeal is a second bite of the cherry, so to speak. The parties had issues. They took those issues to court. They received a result and the reason for that result, and the parties ought exercise the greatest care for choosing to prolong litigation and challenge the result of proceedings below. It is for those reasons that, notwithstanding a real reluctance to impose an order for costs on the mother, I do so.
Counsel also made reference to the father amending his grounds of appeal on the eve of the hearing and again on the morning of the hearing itself. It was said this resulted in the mother incurring further costs, including the cost of further written submissions, a consideration under ss 117(2A)(c) and (d).
It was submitted at paragraph 9 of the written submissions:
While accepting that the Court has found that one (of many) of the [father’s] complaints “resonates with the Court” this does not alter the reality that s 117 (2A) (e) has been enlivened. Your Honours by your reasons and orders clearly did not accept the graphic analogies of the case going : “completely and utterly of the rails” or the case being akin to a “runaway train”. The Appellant’s sense of indignation is no substitute for a valid ground of appeal. The argument that the risk of suicide was “explosive material” was, with respect, misplaced, given the [father’s] considerable familiarity with this concern when the parties were living as a family. Without conceding that the [father] may have come close to success this does not ordinarily prevent a narrowly successful party from obtaining costs: Wentworth & Rogers [2003] NSWSC 944 at [39] per Howie J, Lansen v Minister for the Environment and Hertiage (No 3) [2008] FCA 1367 at [41] per Mansfield J see also Dal Pont “Law of Costs” 2nd edition at [8.33].
(footnotes omitted)
In concluding the mother’s written submissions it was said that the father should have, in effect, given greater consideration to the Director General’s decision not to join in the appeal.
Submissions of the father
In the written submissions filed on behalf of the father each of the considerations detailed in s 117(2A) of the Act were referred to under applicable headings.
In addressing the financial position of the parties it was said that there is no evidence before the court as to the father’s income. It was explained that the father was unable to complete his deferred law school examination due to the retention of the children by the mother, and thus was unable to commence his articles in June 2010. Further, it was explained that the father was required to spend an additional year of study while working as a legal assistant to meet his living expenses.
Reference was made by counsel for the father to the fact that the need for these proceedings arose due to the mother’s retention of the children in Australia. The finding of the trial judge that the mother did not obtain the father’s consent for the children to stay in Australia was reiterated, as was the comment by the Full Court that the finding was not challenged by the mother.
It was explained that the father “does not have any interest in any asset of significance”, and that in order to “fund the return of the mother and the children to Canada … he would have to borrow money from his family to facilitate this”. It was said that the father has over $100,000 in debts, which is attributable to his university studies.
It was further explained that the father had relied on the assistance of his family to involve himself in the proceedings before the trial judge and to meet his expenses of travelling to Australia to spend time with the children.
Submissions were then made as to the ongoing expense that the father would incur in order to facilitate spending time with the children, this regrettably is no longer a consideration given the father’s death.
In response to the submission that the father had retained cheques from the Canadian Social Security Department it was said that “these cheques were given to the mother’s legal representative in Canada during the course of the initial hearing”. It was said it was the father’s understanding that the cheques were to assist with the expenses of children living in Canada.
It was submitted that the father had paid a large component of the debt due from child support, and that since early 2011 he has continued to make child support payments.
In concluding the submissions on this ground it was said:
Ultimately there is no evidence before the Court that would satisfy it that the father has the means to satisfy any costs order that is made against him. Indeed the evidence that is before the Court as to his financial means would strongly suggest otherwise.
In regard to the mother’s submission that the father’s conduct in the proceedings should be a consideration it was reiterated that the “proceedings arose squarely as a consequence of the [mother’s] wrongful retention of the children in Australia. Had the mother not taken this unilateral action the initial proceedings and arguably the appeal would not have been necessary”.
It was submitted:
15.The Full Court found that at least one of the grounds of appeal advanced on behalf of the [father] “resonated” with the Court.
16.The Full Court further found that the manner in which the psychiatric evidence was introduced at trial was “regrettable”.
17.The [father] did amend his Grounds of Appeal shortly before the commencement of the Appeal. It is submitted that the timing of this amendment would not have necessitated additional work being undertaken by those acting for the [mother]. That is to say that if the additional grounds had been included in the Notice of Appeal they would have addressed in the [mother’s] original submissions. Further, the [mother] was able to meet those additional grounds at the hearing of the matter. Accordingly there was no delay in the proceedings occasioned by the amendment.
18.It is not understood how language employed during the course of the hearing on behalf of the [father] should in some way ground a costs order. The reference to analogies that might have been drawn in paragraph 9 of the [mother’s] submissions does not, in our respectful submission assist the Court.
As to the submission that costs should be ordered as the father was wholly unsuccessful in the appeal it was said that Hague proceedings should be differentiated from general proceedings in the consideration of s 117(2A)(e) of the Act, as by their nature, Hague proceedings result in one party being entirely successful and the other party entirely unsuccessful.
It was said at paragraph 22 of the father’s written submissions:
Given the Court’s findings in relation to the circumstances that gave rise to the children being present in Australia and the Court’s general comments in relation to the admission of evidence at the Trial it is submitted that the orders that were ultimately made do not give a full picture of the success or otherwise of the [mother].
It was submitted by counsel for the father that this was not in fact his “second bite of the cherry”, as the Central Authority sought orders for the return of the children at trial. It was explained that the father only acted as a witness in the Central Authority’s case and that “[h]is instructions were not sought about the making of forensic decisions in the running of the case, including decisions as to what evidence was required at the hearing”.
Further it was submitted:
24.The Trial Judge’s decision rested, in part, on the admission of the evidence of [Dr L]. After the admission of that evidence Counsel for the Central Authority was given the opportunity to adjourn the proceedings and obtain medical evidence to rebut [Dr L’s] oral evidence.
25.The Court is reminded that evidence that was so heavily relied upon by the Trial Judge was not contained in the various written reports of [Dr L] or indeed [Ms D] (both of whom were witnesses in the [mother’s] case) and only came about during their oral evidence before the Court.
26.The refusal by the Central Authority to obtain that adjournment was one that had far reaching consequences at first instance and again on Appeal. The submission of behalf of the [father], that was made at the Appeal, is repeated here. The Central Authority had several conflicting matters to take into account in making that determination. They were charged with the task of upholding the objectives of the Convention. One of those objectives is to have matters concluded in 6 weeks. At the time of the first day of the hearing this matter had substantially over run that period. The father’s only opportunity to redress that forensic decision, that he did not make and had no input into, was to appeal the decision about its’[sic] inclusion. The ground of appeal that dealt with the admission of that evidence was said to “resonate” with the Full Court.
In response to the submission advanced on behalf of the mother that the father should have considered the decision of the Director General not to participate in the appeal, it was said there is no evidence as to why the Director General did not join the proceedings. It was said that although this submission of the mother should not be afforded any weight, a possible explanation may be because the father appealed in his own right.
Counsel for the father submitted that whether a person is wholly unsuccessful is only one factor (see White & White [2008] FamCAFC 147).
Mother’s submissions in reply
Although the submissions in reply were received some six days late, given the circumstances of this case, we have considered the mother’s submissions.
On behalf of the mother it was said:
2.The substance of the appeal had little to do with the Hague Convention or retention of children. Two main arguments were advanced
(a) That His Honour’s reasons were inadequate and
(b) That some psychiatric reports should not have been admitted.
It was said that there is no evidence as to the father’s costs incurred in the trial, and that it was not necessary for the father to be represented by a Canadian lawyer.
Counsel for the mother submitted that the submissions as to the father’s financial circumstances were inadmissible, as were most of the father’s submissions.
It was said in reply:
22.… this was not an Appeal in which the complexities of the Hague Convention received any more than passing attention. Many areas of law are involved and complex. Where the choices open to the mother were remain (sic) in Australia or return to a Canada (sic) with all the risks to her mental health this involved the mother’s decision to remain in Australia was vindicated.
23.The [father] had two bites of the cherry. Unlike most litigants his first bite was funded by the state. He then had the benefit of the transcript and the trial judgment before making the decision to take his second bite being an Appeal.
26.,30.The [father’s] level of input into the forensic decision at trial are a matter of fact. A request was made by the [mother] that he attend for the hearing. He elected to remain in Canada.
Conclusion
Despite the fact that we have received no correspondence as to the current position of the father’s estate, we are of the view that judgment can be given as the application for costs was that of the mother, whom we know is still pursuing costs. In addition, all written submissions have been received, and thus no party could be prejudiced by the making of our orders and the finalisation of these proceedings.
In view of the circumstances of this case we are of the view that there should be no order as to costs.
Apart from the appellant ultimately being unsuccessful on appeal there are no justifying circumstances. The appeal was not without merit and involved serious consequences for the parties and the children.
I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Johnston JJ) delivered on 29 February 2012.
Associate:
Date: 29 February 2012
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