IYER & SUBRAMANIUM
[2013] FamCAFC 2
FAMILY COURT OF AUSTRALIA
| IYER & SUBRAMANIUM | [2013] FamCAFC 2 |
| FAMILY LAW – APPLICATION IN AN APPEAL – DISMISSAL – where the husband filed appeals against parenting and property settlement orders made in the Federal Magistrates Court – where the Full Court granted the wife leave to make an oral application that the husband’s appeal against parenting orders be dismissed – where allowing the appeal to proceed would lack any utility because it would probably be heard in April 2013 and the child turns 18 years of age in May 2013 – wife’s application allowed – husband’s appeal against parenting orders dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – where the wife sought an order that the husband provide security for her costs of the appeals in the amount of $30,000 – where if unsuccessful in the appeal a costs order against the husband could be offset from the funds the Federal Magistrate ordered the wife to pay the husband – where the husband’s complaints in relation to the property settlement orders did not demonstrably lack merit – where the bona fides of the husband were not sufficiently in doubt to support an application for security for costs – where the wife’s solicitor conceding during the hearing that to require the husband to pay security for costs and to order that the appeal not proceed until the security is paid would have the effect of stifling the appeal – wife’s application dismissed – no order for costs. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 19.05 |
| Sawer & Sawer [2007] FamCA 140 |
| APPELLANT: | Mr Iyer |
| RESPONDENT: | Ms Subramanium |
| APPEAL NUMBERS: | NA | 14 | of | 2012 |
| NA | 15 | of | 2012 |
| FILE NUMBER: | BRC | 10611 | of | 2009 |
| DATE DELIVERED: | 15 January 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 5 November 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT/ORDER DATES: | 1 February 2012 15 February 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 61 |
REPRESENTATION
| FOR THE APPELLANT: | Self-represented (appeared by telephone) |
| SOLICITOR FOR THE RESPONDENT: | Terry Anderssen Solicitor |
Orders
The application in an appeal filed by the respondent wife on 28 March 2012 for security for costs be dismissed.
Leave be granted to the respondent wife to make an oral application for an order that the appellant husband’s appeal NA 15 of 2012 be dismissed.
Appeal NA 15 of 2012 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Iyer & Subramanium 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 BRISBANE |
Appeal Numbers: NA 14 of 2012; NA 15 of 2012
File Number: BRC 10611 of 2009
| Mr Iyer |
Appellant
And
| Ms Subramanium |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application in an appeal filed by Ms Subramanium (“the wife”) on
28 March 2012 seeking an order for security for costs in relation to appeals filed by Mr Iyer (“the husband”). The husband opposes the application.
The husband has appealed against parenting and property settlement orders made by Baumann FM in proceedings between the husband and the wife.
The Federal Magistrate heard both the parenting and property settlement proceedings, and on 1 February 2012 delivered his reasons for judgment and made orders concerning the child D, born in May 1995. His Honour adjourned the pronouncement of the orders for property settlement to 15 February 2012. On that date his Honour made those orders.
In relation to the child, the Federal Magistrate ordered that he live with the wife, the wife have the sole parental responsibility for him, and the husband communicate with him through cards and gifts for birthdays and other special occasions, and a card or letter each month. No order was made providing for the child to spend time with the husband, and his Honour indicated that this was in accordance with the express wishes of the child.
By Notice of Appeal NA 15 of 2012 the husband appeals the orders providing for the wife to have sole parental responsibility, and in effect challenges that there be no order for the child to spend time with him.
As to the property settlement orders, the Federal Magistrate ordered the wife to pay $58,500 to the husband within 35 days of the order, and the husband to then transfer his interest in the former matrimonial home to the wife. Orders were also made to give effect to the sale of the property in the event that the wife was not able to raise the funds necessary to make the payment to the husband.
By Notice of Appeal NA 14 of 2012 the husband appeals some of the orders for property settlement. There is some confusion though as to which orders for property settlement the husband appeals against, brought about by the non-sequential numbering of the orders by the Federal Magistrate, but it seems that he primarily challenges the amount that he is to pay to the wife, and the percentage of the proceeds he is to receive if there is a sale of the property.
We observe that on the hearing of the wife’s application the husband ultimately appeared by telephone. Although the husband continually interrupted and shouted resulting in a brief adjournment, we consider that the husband was able to make his position known.
During the hearing of the wife’s application in an appeal we gave leave to her to make an oral application that the husband’s appeal against the parenting orders be dismissed. That oral application was then made and we heard submissions in support of it. The husband opposed the appeal being dismissed and he made submissions in support of that opposition.
The wife’s application to dismiss the appeal against the parenting orders
In his Notice of Appeal (NA 15 of 2012) filed on 27 February 2012 the husband sets out the following grounds of appeal (spelling and grammatical mistakes in original):
1.The court notes that (7.) no prescribed order for the child to spend time with the father has been made… the mother will, if the child expresses a wish to do so, facilitate any interaction between the child and the father.
[The wife] has no intention of allowing interaction between Child ([D]) and myself ([Iyer]) She has filed (15th Feb 2012) an Application for a Protection Order to add [D’s] name to her own DV order Court File Number: …
2.The court does not recognise that [the wife] did live with myself for three days (while we both had DV orders against each other). This happened only after CSA asked her to pay an outstanding amount to me while [D] was living with myself. I wished not to use [D] as a witness to this matter. This is also when, and why she added [D] to the DV orders she had on me, to avoid child maintenance herself, and turn it on me as more stress. It is knowledge that [D] lived with me for six months, and how he came to me. How [D] came to her care is avoided.
3.[The wife] with her higher pay grade has had a huge advantage over myself in court, allowing her access to better legal aid. While this matter is not to bother the court, she has used illegal documents (including a forged photograph), and lies to gain an unfair advantage in court. This is unacceptable and due punishment should be handed.
4.In court I am made out to be a bully, this is a completely incorrect. It is correctly stated I have strong views on life. While [D] lived with me he was happy yet this is disregarded.
It is immediately apparent that none of these complaints raise proper grounds of appeal. However, even taking the complaints at face value, it is plain that, having regard to the reasons of the Federal Magistrate, this appeal has no prospect of success. In summary, his Honour found:
a)That the husband had perpetrated family violence upon the wife and the children during the latter part of the parties’ relationship and at least since coming to live in Australia in May 2007. Significantly, the husband was convicted of assaulting the child in April 2008.
b)In relation to the primary considerations arising under s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”), the Federal Magistrate acknowledged that the husband historically had significant involvement in the child’s care, but that his “fixation with his perceptions and opinions makes it difficult – almost impossible – for [D] to derive any benefit from spending time with his Father”. Ultimately, the Federal Magistrate concluded the child would be at risk of “at least significant emotional harm” if he spent time with his father.
c)As to the additional considerations arising under s 60CC(3) of the Act, the Federal Magistrate determined that other factors paled in comparison to the weight his Honour felt compelled to attach to the child’s wishes. Given the child’s age, maturity and understanding of his need for stability in his final years of secondary school, the Federal Magistrate felt compelled to support and respect the child’s wishes not to spend time with his father.
Apart from the lack of any prospect of success, it is plain that to allow this appeal to proceed would lack any utility. We understand that if the appeal is to proceed and is not stayed pending payment of any order for security, it would probably be heard in April 2013. Significantly, the child turns 18 years of age in May 2013, at which time this court (and the Federal Magistrates Court) will cease to have jurisdiction in relation to him. Indeed, in all likelihood, the child will be beyond the jurisdiction of the court before judgment on the parenting appeal is delivered.
In response the husband argued that he wanted the appeal to continue because he is the child’s biological father and his son should live with him. We note though that the husband did not appeal against the order that the child live with the wife. In any event, this submission does not provide a basis for the appeal to be able to proceed.
In these circumstances we propose to dismiss this appeal.
The wife’s application for security for costs
The wife seeks that the husband provide security for her costs in the sum of $30,000. She further seeks orders that if the security is not provided in accordance with any such order, then the appeal be stayed or dismissed for want of prosecution.
In her affidavit in support of the application the wife deposes that she does not have funds available to meet her costs of the appeal. She estimates that her costs incurred at trial were in the order of $55,000, and we understand that she has filed an application in the Federal Magistrates Court seeking that the husband pay her costs of that trial on an indemnity basis. That application has not yet been heard.
As to the appeal, the wife estimates the costs of responding to the appeal at $30,000.
Relevant principles
The principles governing an application for security for costs of an appeal were summarised in Sawer & Sawer [2007] FamCA 140 (“Sawer”) where the Full Court said:
19.The power in this Court to make an order for security for costs is to be found in s 117(2) of the [Family Law Act 1975 (Cth) (“the Act”)], which is in the following terms:
If, in proceedings under this Act, the court is of [the] 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.
20.The provisions of s 117(2A) are as follows (- s 117(4) and (5) are not presently relevant):
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.
21.The authorities establish that in exercising the discretion to order security for costs, it may also be relevant for the Court to consider in addition to the financial circumstances of the parties and the other five specific matters mentioned in s 117(2A), the following matters:
a) the prospect of success of the litigation;
b) whether the claim for security is made bona fide;
c)whether or not an order for security would stifle the litigation;
d)whether or not the litigation may involve a matter of public importance;
e) whether or not there has been a delay in bringing the application for security;
f) whether there would be difficulty in enforcing an order for costs.
(Luadaka v Luadaka (1998) FLC 92-830; Jones and Jones (2001) FLC 93-080; Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116.)
The matters of potential relevance referred to by the Full Court in Sawer at [21] largely mirror r 19.05(2) of the Family Law Rules 2004 (Cth) (“the Rules”).
Discussion
Given that we propose to dismiss the appeal against the parenting orders, it is only necessary to consider the question of security for costs in relation to the appeal against the orders for property settlement.
The wife’s argument in support of her application for security primarily rests on the assumption that the appeal lacks merit and will be dismissed with costs, which the husband is unlikely to pay.
We propose to discuss the wife’s case by reference to the list of potentially relevant factors summarised in Sawer at [18]. In doing so, we will touch on matters in s 117(2A) of the Act to the extent relevant.
The circumstances of the parties
The wife estimates the costs of responding to the appeal filed by the husband at $30,000. Clearly though that estimate will now be somewhat less given that we propose to dismiss the appeal against the parenting orders.
The wife’s financial statement reveals that she receives a weekly income of $1,354 and has expenses that equal that amount. She does not disclose any other source of income.
The husband has not filed a financial statement in these proceedings, but he argues that his income is less than the wife’s, and, although he is living in the former matrimonial home, he is meeting the payments on that property. It could not be said that the husband is impecunious, although it seems that he does not have access to a lump sum to meet any order for security for costs.
The prospects of success of the appeal
In his Notice of Appeal (NA 14 of 2012) filed on 27 February 2012 the husband has set out nine grounds of appeal. Although, as with the appeal against the parenting orders, it is difficult to discern a proper ground of appeal amongst those grounds of appeal, it seems that the husband challenges
his Honour’s exercise of discretion in determining the respective contributions of the parties and the Federal Magistrate’s treatment of a property in India. The dispute in relation to that property is whether it is a property owned by the husband, or by the husband’s father and mother.
It would be inappropriate for this court to conduct a detailed examination of the merits of each of the complaints made by the husband, but it is sufficient to say that although we have concerns about the prospects of success of many of the complaints, we are not persuaded that all of the complaints demonstrably lack merit. That is not to say that we consider the appeal has good prospects of success, but rather that it is not possible for us to say with any certainty that all of the grounds will fail.
The bona fides of the parties
The wife appears to call into doubt the bona fides of the husband. She relies on the prediction of the Federal Magistrate that the husband would not accept his findings and that the Federal Magistrate found the husband’s evidence “[tainted] by his own perceptions of the truth”. Although we have concerns about the genuineness of the husband, we are not persuaded that there is sufficient there to support the application for security for costs.
Whether there would be difficulty in enforcing an order for costs
As referred to above, it is now uncertain what the costs of responding to the husband’s appeal will be, but plainly it will still be a significant sum. We observe though that the estimated costs of $30,000 of responding to both appeals reflects the whole of the costs to be paid by the wife. To seek that sum as security for costs amounts to the wife seeking an order for indemnity costs. It is only in exceptional circumstances though when an order for indemnity costs is made, and ordinarily any costs order would be calculated on a party/party basis, and that would of course be less than the whole of her costs.
Although it seems that the husband does not have access to a lump sum to meet any order for costs, in the event that the husband’s appeal fails and he is ordered to pay costs, it is apparent that that costs order may be offset from the funds that the wife was otherwise ordered to pay to the husband by the Federal Magistrate.
Thus, again, this is not a circumstance that supports an order for security for costs being made.
Whether an order for security would stifle the litigation
In our view this is a significant issue here, and is sufficient to lead to a dismissal of the application.
On the material before us it is not apparent that the husband would be able to meet an order for security for costs, and although initially submitting that such an order would not stifle the litigation, during the hearing of the application the wife’s solicitor conceded that to require the husband to pay security for costs and to order that the appeal not proceed until the security is paid would have the effect of stifling the appeal.
Conclusion
In all the circumstances we are not persuaded that this is a case in which it is appropriate to order the husband to provide security for the wife’s costs in responding to the appeal against the orders for property settlement.
Costs
The wife’s application for security for costs has been unsuccessful, although her application that the husband’s appeal in relation to parenting orders has been successful. Given the financial circumstances of each of the parties, we are of the view that neither should have to pay the costs of the other and we will make no order as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Murphy JJ) delivered on 15 January 2013.
Associate:
Date: 15 January 2013
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