Hayes and Stapleton (Surety for Costs)
[2009] FamCAFC 223
•3 December 2009
FAMILY COURT OF AUSTRALIA
| HAYES & STAPLETON (SURETY FOR COSTS) | [2009] FamCAFC 223 |
| FAMILY LAW - APPEAL – Application for surety of costs – no justifying circumstances – application dismissed. |
| Family Law Act 1975 (Cth) |
| Sheehan & Sheehan (1990) FamCA 92-129 Luadaka & Luadaka (1998) FLC 92-830 |
| APPLICANT: | Mr Hayes |
| RESPONDENT: | Ms Stapleton |
| INTERVENOR: | Department of Human Services |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of New South Wales |
| FILE NUMBER: | SYC | 2750 | of | 2007 |
| APPEAL NUMBER: | EA | 68 | of | 2009 |
| DATE DELIVERED: | 3 December 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Thackray & O'Ryan JJ |
| HEARING DATE: | 3 December 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 May 2009 |
| LOWER COURT MNC: | [2008] FamCA 437 |
REPRESENTATION
| THE APPLICANT: | Mr Hayes in person |
| SOLICITOR FOR THE RESPONDENT: | Mr Potkonyak, solicitor |
| COUNSEL FOR THE INTERVENOR: | No appearance (excused) |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr O'Dowd, solicitor (excused) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
Orders
The application for security for costs filed 14 August 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hayes & Stapleton (Surety for 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 Number: EA 68 of 2009
File Number: SYC 2570 of 2007
| MR HAYES |
Appellant
And
| MS STAPLETON |
Respondent
REASONS FOR JUDGMENT
O’RYAN J
INTRODUCTION
Before us for hearing is an application by Mr Hayes (“the Father”) seeking that Ms Stapleton (“the Mother”) pay into the trust account of the Father’s solicitors, LM Associates, the sum of $50,000, being “a surety against legal costs” incurred by the Father in relation to an appeal by the Mother against final parenting orders made by Moore J on 25 May 2009. The Mother opposes the application.
In support of the application, the Father swore an affidavit of 12 August 2009. The Mother filed no evidence.
The Mother’s appeal has not yet been fixed for hearing, however, the appeal books have been filed and served and comprise some eight volumes. The hearing will probably occur in the first half of 2010.
The Father appeared before us without legal representation. The Mother, however, was represented by a solicitor. I note, however, that the solicitor only received instructions yesterday.
BACKGROUND
By way of background, it is relevant to consider some of what the trial Judge said. In her reasons for judgment, delivered 25 May 2009, her Honour said:
1.This decision concerns the future arrangements for two young children – [N] born … July 2000 and [E] born … September 2001 – more particularly, which parent they will live with, what time they will spend with their other parent and the circumstances in which that will occur. There is a raft of other proposals to be considered, not only as put by the parents but also by the Independent Children’s Lawyer [ICL] and the Director-General of the Department of Community Services [DOCS] who took up the Court’s request to intervene in the proceedings after the report of the Court appointed psychiatrist, [Dr R], became available. A good deal of the evidence revolved around the allegation that the children were sexually abused while in the father’s care.
2.Unfortunately the conclusion of the case has been prolonged. Set for final hearing over a number of days in October, it had to be adjourned part heard to conclude the evidence when later dates could be allocated which also proved to be insufficient and a timetable had to be set to take submissions in writing. The last of the submissions came from counsel for the mother but then she lodged further material independently of her legal representatives and the status of that had to be clarified. In the result an opportunity was given to the mother’s counsel to consider the material provided and to withdraw and amend the earlier submissions. That was done but there was further delay because copies were not sent to the correct email address of all other parties.
As to the “issues”, her Honour said:
31.Counsel for the ICL identifies three broad questions underpinning the best interests decision:
a. Are the children exposed to an unacceptable risk of sexual abuse by [B] and [T] while with their father?
b. Does the mother exhibit behaviour and/or suffer from a psychiatric illness to such a degree as to prevent her from adequately fulfilling the role of residential parent?
c. Which parent is most likely to encourage the children to have a meaningful relationship with both parents?
32.Counsel for the Director-General agrees while the submissions for the mother identify the focal issue as being unacceptable risk. From the father’s point of view the evidence gives rise to two questions: the first and central question is the protection of the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence [primary consideration in s 60CC(2)(b)]; the second is the encouragement each parent can give to enable the children to have a meaningful relationship with the other parent [primary consideration in s 60CC(2)(a)]. I see the differences being more of expression and emphasis than substantial. Findings will be made so far as they are open and necessary to establish the facts on which the children’s best interests can be evaluated.
According to the front sheet of the of the reasons for judgment of the trial Judge, the hearing commenced on 18 September 2007 and, thereafter, continued over a period of 13 days, concluding on 18 February 2009. The trial Judge then received extensive written submissions, dated 5 and 12 December 2009, 16 January 2009 and 11 March 2009.
On 25 May 2009, the trial Judge delivered reasons and made the following orders:
1.All previous parenting orders are discharged.
2.The father is to have sole parental responsibility for the children [N] born … July 2000 and [E] born … September 2001.
3.The children are to live with their father.
4.Not earlier than one month after the making of these orders the children are to spend time with their mother supervised at the [H] Contact Service or other agreed supervised setting if that service is not available for any reason for three consecutive months on two consecutive days in each month and for a minimum of two hours each day at dates and times provided by [H] Contact Service or other agreed supervisor.
5.Upon the completion of the three month period referred to in 4 the children spend time with the mother as follows:
(A) during school terms:
(a) for two weekends each term [the 2nd and 8th unless otherwise agreed] in the [H] area, the mother or her nominee to collect the children from school on Friday at the commencement of the period and to return them to school on Monday at the conclusion of the period;
(b) for one weekend [the 5th unless otherwise agreed] in the Sydney Metropolitan area, the mother or her nominee to collect the children from the father or his nominee at 9am Saturday from Central Railway Station and the mother or her nominee to return the children to the father or his nominee at 5pm on the Sunday.
(B) during school holidays:
(c) for the holidays at the end of the 1st and 3rd terms from the last day of school to the final Wednesday of those holidays, the mother or her nominee to collect the children from school at the commencement of the period and the father or his nominee to collect them from the [G] Contact Centre or other agreed venue at the conclusion of the period;
(d) for one half of the holidays at the end of the 2nd term and during the December/January school holiday period, at times to be agreed and failing agreement:
(i)for the first half in years ending in an even number, the mother or her nominee to collect the children from school at the commencement of her time with the children and the father or his nominee to collect the children from the [G] Contact Centre or other agreed venue at the conclusion of the period;
(ii)for the second half in years ending in an odd number, the mother or her nominee to collect the children from the [H] Contact Centre or other agreed venue at the commencement of the period and the father or his nominee to collect the children from the [G] Contact Centre or other agreed venue at the conclusion of the period;
(C) at other times:
(e) if the mother is in the [H] area and not otherwise spending time with the children according to these orders, for three hours with both children on each of the children’s birthday(s) at times agreed and failing agreement from after school until 7pm if it falls on a school day and from 3pm to 7pm if not on a school day;
(f) at other times agreed between the parents in writing.
6.The father is to facilitate the children communicating with their mother while in his care by telephone each Tuesday and Thursday at about 6pm by assisting the children to call their mother at that time.
7.The mother is to facilitate the children communicating with their father while in her care by telephone each Tuesday and Thursday at about 6pm by assisting the children to call their father at that time.
8.The mother is restrained and an injunction is hereby granted restraining her from presenting either of the children for any psychiatric or psychological consultation or for any medical examination in furtherance of an allegation of sexual abuse or from presenting either of the children for counseling related to any allegation of sexual abuse without the written consent of both parents or failing that the written permission of the New South Wales Department of Community Services.
9.The father is to
(i) forthwith advise the mother in writing of the name of the school at which he enrolls the children at any time and the mother will be entitled to obtain directly from the school copies of all reports related to the children’s progress and any newsletters or other material provided by the school to all parents; and
(ii) keep the mother informed of any non-routine medical treatment sought for the children and provide at the same time the name and contact details of the treating medical practitioner; and
(iii) keep the mother informed of any other major decisions taken in relation to the children’s upbringing.
10.The ICL is at liberty to provide to the school a copy of these orders.
11.If further allegations of sexual abuse of the children should arise in the future, either parent or the New South Wales Department of Community Services as a party to these proceedings is authorized to provide a copy of these orders and the Reasons for Judgment delivered 25 May 2009 to the New South Wales Police or any other authority responsible for investigating the allegations.
12.The Director-General of the Department of Community Services is to ensure that a copy of these orders and these Reasons for Judgment are placed on the file maintained by the Department and to ensure the existence and availability of these documents are recorded on any database referable to the children.
13.Pursuant to Section 65L of the Family Law Act 1975, a Family Consultant nominated by the Director, Child Dispute Resolution Services of the Family Court Sydney Registry is appointed to report if so requested by the Court and with the implementation of these orders as necessary, including but not limited to:
(i) facilitating the changeover of the care of the children’s care to their father;
(ii) in consultation with the Independent Children’s Lawyer advising the children of the orders;
(iii) making recommendations to the father for any appropriate referral for counseling of the children as may be required for the transition to his care.
14.The Director-General is requested to facilitate the implementation of these orders as may be necessary
In [177] to [184] of her reasons, the trial Judge explains what she described as the “form of orders”. I will not repeat what her Honour said, although I observe at [28] that she said: “Upset and difficulties following this decision are certain”.
In her reasons, the trial Judge concluded that the allegations of sexual abuse of the children were groundless, and she said:
114.First it can be said that there is no room for prejudgment in addressing this issue – a blank page is the starting point – and nor is there any room for surprise about things children might say about their experiences. That said, having reviewed the whole of the evidence I have concluded the allegations of sexual abuse of the children are groundless and I am satisfied no abuse as alleged was perpetrated either (i) by the father or (ii) by [B] or (iii) by [T]. It follows that I find no unacceptable risk of harm of such abuse to either child from being in their father’s care or being in the presence of either of [Ms S’s] children. It is my assessment that while indicators of abuse can be identified, they are unreliable, contaminated by adult influences, or illogical and such weight as can attach to them are overwhelmed by a raft of contra-indicators. Reasons follow.
The trial Judge summarised her conclusions as follows:
174.There are powerful considerations to say that the children’s best interests would be served by remaining in their mother’s care. To recap, they have lived with her all their life, they would have no memory of their father being part of a shared household before the parents’ separation, he has not been tested in the role of primary carer with full day to day and major responsibility for their upbringing, they have been at [L] now for two years, they are settled at school where they are achieving well and have friends and activities and interests such as horses. They have the support and involvement of their paternal grandfather in their life along with other members of their mother’s family including their aunt who visits regularly. They love their mother and have said they want to stay with her. They have wavered in their attitude to spending time with their father but have made no statement that they want to live with him. There is much about the arrangement to provide the children with the stability and continuity that is normally so important for children.
175.But that is not the full picture and while the arrangement offers obvious benefits for the children, there are significant drawbacks which affect other important aspects of their welfare and development. Their mother is unwilling or unable to facilitate their relationship with their father. It could not be said here that she is driven by malicious intent to marginalise him and his involvement in their lives; it must be seen as a result of her impaired functioning assessed by [Dr R] as a delusional disorder which she has no sufficient insight into much less motivation to undertake recommended treatment. Instead, she has maintained denial of symptoms, a course that seems to have been encouraged by those around her despite the plain indication of paranoia observed by others with no investment in the outcome of these proceedings, including observations from not one but several independent sources and from as far back as the observations of the Family Report writer in February 2006. Impaired functioning or episodes of paranoia are not of themselves problematic necessarily; many with such mental illness could fulfil their parental responsibilities quite adequately, possibly with support and monitoring from those around them. But here the mother’s difficulties do have serious consequences for the children. There is little prospect of the children being able to develop or further their relationship with their father so as to render it anywhere approaching ‘meaningful’ while ever the mother maintains her attitude towards him or her view that the children are unsafe in his care. She does maintain it and no change is apparent. It is likely the children will continue to see their father as not protecting them from harm, or possibly being the source of harm, and that can only impact adversely on their psychological well-being, not only in the short term but in the longer term as they develop into adulthood. There are indications of the children’s attitude towards their father being aligned more to their mother’s view of him and if that continues in that direction there may be no prospect of the children doing other than accepting their mother’s view of reality which has no basis in fact. Their best interests require that they be protected from this psychological and emotional harm.
176.The decision is not an easy one. Of course there can be no certainty about the effect on the children of a change in their living arrangements since it has not yet occurred, but it is reasonable to assume there would be a significant impact for them. As noted earlier, contemplation of the upset and distress for them and those around them brings that to the fore. Yet the balance of their best interests requires they be placed in their father’s care. They will not be at risk of harm of the kind alleged against him or his step sons. I am satisfied he will support the children’s relationship with their mother and ensure they have regular time and communication with her, thus facilitating their need for a meaningful relationship with their mother. He would of course expect that would not expose the children to further allegations about abuse or lack of safety in his care. He is capable of taking responsibility for their upbringing and being a responsible role model for them. He can provide stability and the children would return to an environment they are familiar with and where they previously had friends. In the ambit of their father’s care they are likely to have a more rounded and balanced development unburdened by the psychological harm that can only continue if they remain in their mother’s care under the influence of her attitudes and views.
The reasons for judgment are very comprehensive and comprise some 81 pages. The volume of evidence the trial Judge had before her was extensive. At [29] of her reasons, the trial Judge identified the evidence relied upon. I observe that she also had a “substantial body of documents tendered at the hearing”.
On 27 May 2009, the Mother filed a Notice of Appeal. In that Notice of Appeal, the Mother sought to appeal against all of the orders of 25 May 2009. There were three grounds of appeal specified: first, that the orders were against the evidence and the weight of the evidence; second, that the orders failed to have regard to the submissions of the Department of Community Services; and third, the court failed to have regard to the evidence of the Mother’s treating doctor. Notice, however, was given of intention to amend the Notice of Appeal. Then on 14 August 2009, the Father filed the application for security for costs, which we are now dealing with.
On 27 October 2009, an amended Notice of Appeal was filed by the Mother. In the amended Notice of Appeal, the Mother stated, at paragraph 8, that she is not appealing against all of the orders of “25/10/09”. The reference to 25 October 2009 must be an error and should read 25 May 2009. However, the Mother did not identify which of the orders of 25 May 2009 she is appealing against.
The proposed grounds of appeal are set out in an attachment to the amended Notice of Appeal. The attachment comprises five pages. The paragraphs of the attachment are not numbered and so it is not possible to readily identify the number of grounds of appeal. Further, a preliminary observation is that what is stated in the attachment may be a mixture of submissions and particulars of appealable error. However, it is possible to discern some complaints. For example, looking at pages 4 and 5 of the attachment, there is a significant attack on the evidence and opinions of Dr R.
It will be recalled that Dr R was the court-appointed psychiatrist and the trial Judge dealt extensively with his evidence at [100] to [106] of her reasons. However, this was not the only reference by her Honour to what Dr R said. There are a number of references by her Honour to the evidence of Dr R, when, in her reasons, her Honour dealt with the relevant statutory considerations.
In his affidavit of 12 August 2009, the Father deposed that he contacted Mr LM, solicitor, to engage him as his solicitor for the purposes of this appeal. The Father said that Mr LM expressed his willingness to represent the Father in the appeal, but stated that he would require funds to be credited to his trust account prior to beginning work on the matter. The Father deposed that, in response to his questions as to the amount of funds, Mr LM made an initial estimate of a deposit of $20,000, based on the quantity of documents to be read and the generalised nature of the Mother’s appeal, which would require a thorough reading of all documents and transcripts.
The Father said that Mr LM then informed him that there would be additional costs involved in securing a barrister and briefing the barrister. The Father said that, again, the documentation and the extent of the original hearing and the nature of the Mother’s appeal would make “this an expensive proposition”. The Father said that Mr LM suggested that there could well be six or more days of hearing of the appeal and then lengthy submissions, which would increase the costs.
The Father said that Mr LM’s general view was that the cost would be not less than another $30,000 and probably more likely $40,000 if there were any delays on unforeseen issues. The Father confirmed that Mr LM stated that the Father would be required to make further deposits to the trust account of his solicitor to cover these costs. I observe, as was indicated in discussion with the presiding Judge, that the estimate of the duration of the appeal is probably overstated.
The Father, in his affidavit, also said:
6.While [Mr LM] did note that he would need to view the transcript before making a more accurate estimate of likely costs, and he was hindered by the delay in its provision (See Annexure “A” relating to delays in obtaining the transcript) he did note that he thought it unlikely that the Appeal would cost less than $50,000.
7.Gauging my reluctance to make the initial deposit of $20,000 and commit to a sum that would most likely be in excess of $50,000, [Mr LM] suggested that I should make an Application for a Surety. [Mr LM] advised that the surety could be made payable to his Trust Account and then he would willing to accept my commission.
8.I would note that in making a claim for a surety, I am confident that the Mother will raise the issues of her lack of funds as was done in response to Applications for Costs by both myself and the Independent Children’s Lawyer. I would note that given the breadth of the Mother’s Appeal grounds and her willingness to employ her own legal advisers and pay large amounts of money for associated costs, that it is manifestly unjust for her to use a claim of poverty when requiring expenditure by the Respondent and other parties. It should also be note [sic] that the Mother has chosen not to work for the past and current school terms as a teacher despite her protestations of poverty.
RELEVANT PRINCIPLES
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that “[s]ubject 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.”
Section 117(2) of the Act provides that if, in proceedings under the Act the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub secs (2A), (4) and (5) and the applicable rules, make such order as to costs whether by way of interlocutory order or otherwise, as it considers just.
Section 117(2A) of the Act provides that, in considering what order, if any, should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g) inclusive.
The court may, in an appropriate case, order an appellant to give security for costs: see Sheehan & Sheehan (1990) FLC 92-129 per Fogarty J. However, the need to establish circumstances justifying an order and the considerations in s 117(2A) of the Act apply to such an application.
In Luadaka & Luadaka (1998) FLC 92-830, the Full Court said at 85,501 – 85,502:
39.An order that an applicant provide security for costs may be made in appropriate circumstances. However, it must be established that there are circumstances justifying the making of such an order. In considering whether to make such an order regard must be had to the provisions of s 117(2A). The Family Law Act does not separately list factors which should be taken into account when dealing with an application for security for costs of a pending application for relief pursuant to provisions of the Act.
40.The Rules of Court of all Australian jurisdictions ascribe power for the court to order security for costs: See New South Wales Supreme Court Rules, Pt 53 r 2; Victorian Supreme Court Rules, O 62 r 2. There is also an inherent jurisdiction to order security for costs: Rajski v Computer Manufacture & Design Pty Ltd (1983) 2 NSWLR 122, Quick on Costs at [ 4.8090-4.8110]. The power of the Family Court is contained in s 117, Family Law Act.
41.An application for costs may be made by a party in circumstances where there are pending applications for hearing and he or she does not have sufficient funds available to assist in defraying the costs of adequately preparing for the case and obtaining legal representation. However, in this case the husband is seeking security from the wife against the payment of costs that she may be ordered to pay to him. In Quick on Costs at [4.7890] it is said that it may be necessary to distinguish an order for security for costs from an order for the means to prosecute proceedings and that different considerations regulate the grant of the two remedies. In this case the application is made by the husband, as respondent, seeking that the wife, as applicant, provide security. Ordinarily security for costs is only required from a litigant in the position of a plaintiff, who in the context of family law proceedings is identified as the applicant. However, in proceedings under the Family Law Act, having regard to the nature of the relief sought, and the fact that both parties may be seeking relief, the distinction between the applicant (plaintiff) and the respondent (defendant) is less important.
After a review of various authorities, the Full Court said:
61.In our opinion, when dealing with an application for security for costs the general rule provided for in s 117(1) applies, namely that subject to s 117(2) each party to proceedings shall bear his or her own costs. However, if the court is satisfied that there are circumstances that would justify an order then the court may, subject to s 117(2A), make such order for security for costs as the court considers just. It is not necessary to establish that there are special circumstances. However, it is necessary to establish that there are justifying circumstances. The decision to order security for costs is discretionary, both as to whether to order security, and as to the amount to be secured.
62.The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other. In considering whether or not to make an order, apart from those referred to in s.117(2A), matters which may be relevant include the following:
62.1 It may be relevant to take into account the means of an applicant to satisfy an order for costs if he or she is unsuccessful. Ordinarily the means of the applicant is not alone sufficient to justify an order for costs because of the rule that poverty should be no bar to justice. This is reinforced by s.117 (1). However, the financial circumstances of the applicant do not prevent an order being made if there are other grounds which justify an order. Financial weakness may be relevant, for example, if the applicant is a company. In relation to the means of the respondent, who is the applicant for security, it was held by Goldstein J in Alexander and Alexander (supra) and Gee J in B and B (supra) that the question is whether or not the respondent is able to pay his or her costs. Section 117(2A)(a) requires consideration of the financial circumstances of both parties. However, we do not accept that it will only be in cases where the applicant for security does not have the means to meet his or her costs that an order would be made. In appropriate circumstances an order may be made even if the applicant for security has the means to pay his or her costs.
62.2 The prospects of success is a relevant matter to take into consideration: Parkinson & Co Ltd v Triplan Pty Ltd (supra). However, ordinarily the court will not undertake a detailed assessment of the likelihood of the applicant's success unless it can be demonstrated that there is a high probability of success or failure: Porzelack KG v Porzelack (UK) Ltd [1987] 1 WLR 420; Appleglen Pty Ltd v Mainzeal Corporation Pty Ltd (1988) 79 ALR 634; Equity Access Ltd v Westpac Banking Corporation (1989) ATPR ¶40-972. This is because of the lack of material at the time the application is dealt with. However, such an assessment may be possible in circumstances where, as in this case, affidavits have been filed in which the case sought to be made out is set out.
62.3 It is a relevant consideration whether the applicant's claim is made bona fide, whether it is genuine and not trivial, vexatious or a sham: Parkinson & Co Ltd v Triplan Pty Ltd (supra); Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133; J & M O'Brien Enterprises Pty Ltd v Shell Company of Australia Ltd (1983) 7 ACLR 790.
62.4 It may be relevant to consider whether or not an order for costs would be oppressive or stifle the litigation. In Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 Byrne J said at 306:
``A factor in deciding whether security should be required is that the order may well mean that the action cannot proceed. That prospect does not require refusal of the application but it is often a significant matter.''
See also Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 and Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 5 ACLC 480.
62.5 It may be relevant to consider whether or not the litigation may involve a matter of public importance: Equity Access Ltd v Westpac Banking Corporation (supra); Jodast Pty Ltd v A & J Blattner Pty Ltd (1991) 104 ALR 248. In Quick on Costs at [ 4.9440] it is said that this will militate against the making of an order.
62.6 It may be relevant to consider whether or not there has been delay in bringing the application. An application may be refused if there is delay in making the application and prejudice is caused to the respondent to the application: Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301 and Loreva Pty Ltd v Cefa Associated Agencies Pty Ltd (1982) 7 ACLR 164.
62.7 Other relevant matters may include any difficulties of enforcing an order for costs and the amount of costs to be incurred.
63.We do not suggest that the above matters are exhaustive of what may be taken into account. However, such matters may be relevant to the exercise of discretion.
CONCLUSION
I do not propose to deal seriatim with each of the matters in s 117(2A) of the Act. The statutory consideration which the Father referred in his submission was s 117(2A)(e) of the Act, which provides that this court shall have regard to whether any party to the proceedings has been wholly unsuccessful in the proceedings. In summary, it became clear in discussion with the Father, that he relied upon the lack of merit in the Mother’s appeal and that, in the event that the appeal failed and an order for costs was made against the Mother, the Father would have little prospect of recovery.
So far as the first matter relied upon by the Father is concerned, in my view, having considering the reasons of the trial Judge and the grounds of appeal in the amended Notice of Appeal, it cannot be said that the complaints by the Mother are demonstrably hopeless. This is not to imply that I necessarily think that the Mother’s appeal has merit. I express no view about the outcome of the appeal. For example, it may be that at the hearing of the appeal, the Father was not called upon by the court.
It is not contended by the Father that the Mother’s appeal is not made bona fide or genuine. It is not a vexatious proceeding.
The Mother also appears to have complied with all relevant procedural directions with respect to preparation for the appeal.
There is also no evidence before us as to the financial circumstances of each of the parties. The Father, for example, gave no evidence of his financial circumstances in his affidavit of 12 August 2009. I observe that Moore J, at [19] of her reasons, said that both the Father and the Mother are qualified high school teachers. The Father, during his brief oral submissions before us, contended that the Mother is no longer working, although she has been assessed to pay Child Support to the Father.
In conclusion, in all the circumstances of this case, I am not persuaded that the Father has established a justifying circumstance and, thus, I would dismiss his application.
COLEMAN J
For the reasons articulated by Justice O’Ryan, I too would dismiss the Father’s application. I have nothing to add to his Honour’s reasons.
THACKRAY J
Yes, I also concur with Justice O’Ryan’s reasons. I would make the same order.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court of Coleman, Thackray & O’Ryan JJ.
Associate:
Date: 15 December 2009
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