Jacob and Barker (No 3) - [2011] FamCAFC 102

FAMILY COURT OF AUSTRALIA

JACOB & BARKER (NO. 3)

[2011] FamCAFC 102

FAMILY LAW - COSTS – where the father failed to comply with orders preparing the appeal for hearing – the mother seeks an order for costs – failure of father to appear at hearings – satisfied there are circumstances that justify an order for costs being made – father wholly unsuccessful in the appeal and conduct of the father in failing to comply with orders – amount of costs sought in accordance with Schedule 3 of the Family Law Rules – costs sought are reasonable and appropriate – costs order made.

Family Law Act 1975 (Cth) s 117

APPELLANT:

Mr Jacob

RESPONDENT:

Ms Barker

FILE NUMBER:

ADC

2344

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

9 May 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

2 May 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

25 August 2010

LOWER COURT MNC:

[2010] FMCAfam 1134

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Hurley

SOLICITOR FOR THE RESPONDENT:

Holding Redlich

IT IS NOTED that publication of this judgment under the pseudonym Jacob & Barker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 69 of 2010
File Number: ADC 2344 of 2009

Mr Jacob

Appellant

And

Ms Barker

Respondent

FURTHER REASONS FOR JUDGMENT

Introduction

On 2 May 2011 I heard and determined the mother’s application for costs. I was not able to deliver expansive reasons for judgment at that time but I was able to deliver brief ex tempore reasons and I made the order. I now publish my further reasons for judgment as follows.
The application before the court is for the father to pay the mother’s costs of and incidental to the Notice of Appeal filed by the father on 22 September 2010 and the subsequent applications in an appeal. The only formal application before me in relation to the question of costs is comprised in paragraph 4 of the orders sought in the application filed by the mother on 3 February 2011. However, on each occasion that this matter has been before the court I have reserved the question of costs.
The application for costs made by the mother is for $10,619.24, inclusive of GST. Those costs are detailed in an itemised costs account which was provided to the court on 8 April 2011 and updated to include counsel fees for the hearing on 2 May 2011.
The mother’s application was initially listed for hearing on 8 April 2011 but was adjourned for further consideration to 2 May 2011. Although I was satisfied that the father was aware of the listing on 8 April 2011 he failed to attend. As a result that hearing had to be adjourned to enable the mother’s solicitors to forward to the father the itemised costs account which was intended to be handed to him at the hearing.
On 19 April 2011, both by letter and by email from the mother’s solicitor the father was provided with a copy of the itemised costs account and advised that the hearing had been adjourned to 2 May 2011. He was further advised that if he failed to attend that hearing then orders may be made against him.
The father failed to attend the hearing on 2 May 2011 and accordingly I proceeded to hear the mother’s application for costs on an undefended basis and made the order sought.

Factual Background

On 25 August 2010 the following notation and orders were made by Federal Magistrate Lindsay:
UPON NOTING that the father enters a plea of guilty to the charge that on 10 February 2010 he failed to comply with an order for the deliver up of the child [B] to the mother on that day contrary to s. 112 AP of the Family Law Act 1975
ORDERS:
(1)By way of penalty the respondent father be sentenced to a period of imprisonment for ONE [1] MONTH.
(2)The sentence of imprisonment be suspended conditionally upon the respondent father entering into a recognizance in the sum of ONE THOUSAND DOLLARS [$1,000.00] to operate for a period of TWELVE [12] MONTHS and that it be a condition of that recognizance that he observe and comply with the requirements of all parenting orders made from time to time by this Court in relation to the children [M] born in 1995 and [B] born in 1998.
(3)The wife’s application for costs in relation to the s. 112 AP proceedings be adjourned to 1 October 2010 at 9.30am with the father’s counsel at liberty to attend by telephone.
(4) The s. 112 AP application be otherwise dismissed.
(5)The wife do within fourteen [14] days provide in writing detailed particulars of the claim for costs pursuant to Schedule 1 of the Rules of the Court.
On 22 September 2010 the father filed a Notice of Appeal which although was expressed to be against all orders made by the Federal Magistrate, it ultimately became apparent that he was only complaining about the order for imprisonment.
On 10 November 2010 the Chief Justice of the Family Court of Australia directed that pursuant to the provisions of subsection 94AAA(3) of the Family Law Act it was appropriate for the jurisdiction of the Family Court in relation to this appeal to be exercised by a single judge, and the appeal was subsequently listed for directions before me on 23 November 2010.
On 23 November 2010 I raised concerns with the father as to the adequacy of the Notice of Appeal and the draft appeal index. Accordingly I adjourned further consideration of the appeal to 14 December 2010 to enable the father to obtain legal representation and if possible to have his lawyers prepare an appropriate Notice of Appeal and amend the draft index. I observe that it was foreshadowed at this hearing by the counsel for the mother that if there was no amendment to the Notice of Appeal then an application for summary dismissal would be made on the adjourned hearing date.
By 14 December 2010 the father was still without legal representation and he had failed to amend his Notice of Appeal or his draft Appeal Index. The father submitted that he had been unable to obtain the necessary transcript and that was why he was not ready to proceed with the appeal at that time, and he sought a further adjournment. I observe that the email correspondence that the father presented to me at this hearing did not support his claims in relation to Auscript failing to supply him with the transcript, but over the objections of the mother’s counsel I granted the father a further brief adjournment. I also ordered him to file and serve an affidavit detailing his attempts to obtain legal representation and annexing all relevant correspondence in relation thereto and also addressing the issue of obtaining the relevant transcript to enable the appeal to proceed and annexing any relevant correspondence in relation thereto.
At the adjourned hearing on 22 December 2010 the father tendered an affidavit in purported compliance with the order made on 14 December 2010. I received the same for filing but I struck out substantial parts of the affidavit and the annexures thereto as irrelevant or inappropriate and non-responsive to the order made. This is set out in detail in my ex-tempore reasons for judgment delivered on 22 December 2010. At that hearing the father also made an oral application that I be disqualified. As part of my ex-tempore reasons for judgment delivered on that day I addressed this application and made an order dismissing it. Despite the father still being unrepresented and not having filed an amended Notice of Appeal or an amended draft Appeal Index, I listed the appeal for hearing on 25 February 2011 and I made orders for the preparation of the matter for that hearing including for the father to obtain certain transcripts of hearings and to file and serve a written summary of argument and list of authorities.
The father failed to comply with those orders, and on 3 February 2011 the mother filed an application in an appeal seeking an urgent hearing of the matter and that the father’s Notice of Appeal be dismissed for his failure to comply with the orders made on 22 December 2010.
That application came on for hearing before me on 11 February 2011. By that time the father had also filed an application in an appeal on 9 February 2011 seeking a number of orders including “that the program set by His Honour Judge Strickland on 22^nd December 2010 be revised”. That application also came on for hearing before me on 11 February 2011. At that hearing I determined to provide the father with one further and final opportunity to prepare the appeal for hearing and I made orders providing for the father to have further time to obtain the transcript of the hearings and to file and serve a summary of argument and list of authorities. Unfortunately as a result of this the hearing on 25 February 2011 had to be vacated and I relisted the hearing of the appeal to 8 April 2011. I then made a self-executing order that if the father failed to comply with the orders for the obtaining of the transcript and the filing and serving of a written summary or argument and list of authorities then the appeal was to be dismissed and the hearing vacated.
The father failed to comply with the orders made on 11 February 2011 and the self-executing order came into force resulting in the appeal being dismissed and the hearing of the appeal on 8 April 2011 being vacated.
By facsimile dated 21 March 2011 the mother’s solicitors requested that the mother’s application for costs be listed for hearing on 8 April 2011, and that request was accommodated.
To repeat though the father failed to attend the hearing on 8 April 2011 and the matter was adjourned to 2 May 2011 when the father also failed to appear.

Discussion

As with any application for costs in this jurisdiction this application is made pursuant to s 117 of the Family Law Act 1975 (Cth). The relevant subsections of that section are as follows:
(1) [Party bears own costs] 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) [Costs Orders] 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) [Matters relevant to costs order] 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 consider relevant.
In this case the relevant paragraphs to consider from s 117(2A) are (a), (c), (e) and (g). Addressing those paragraphs in turn as follows:
a)Given the failure of the father to attend either the hearing on 8 April 2011 or 2 May 2011, I have scant details of his financial circumstances. From the material that has been filed I am aware that he is employed full-time as an optical dispenser, but I have no evidence as to his income, assets, liabilities or financial resources. The only other information that I have is that he has been assessed to pay child support in the sum of $404 per month but he has not being complying with this assessment. He also has a number of outstanding orders for costs made against him in the Federal Magistrates Court.
With the mother she is employed part-time at a local council and she earns $680 gross per fortnight. She also receives a family tax benefit of $67.06 per fortnight. She has now married and her husband has an income of $130,000 per annum. They jointly own a house property which is subject to a mortgage in the sum of $331,000 and in respect of which the fortnightly repayments are $1,126. The mother also has school expenses for the two children who live with her and they are of the order of $1,000 each per year. Finally, in relation to the ongoing proceedings in the Federal Magistrates Court the mother has legal fees outstanding in the sum of $120,000.
c)I have referred already to the conduct of the father in failing to comply with orders of this court in relation to the preparation of the appeal for hearing. I do not propose to repeat what I have said above in this regard.
e)The father has been wholly unsuccessful in the proceedings.
g)This is a catch-all provision and it is only relevant here to the extent that the conduct of the father and in particular his failure to comply with orders of this court are not caught by paragraph c) above.
I find that there are circumstances here that justify the making of an order for costs. The conduct of the father has resulted in the mother incurring significant legal costs in relation to the father’s appeal. Moreover to repeat, the father has been wholly unsuccessful in the proceedings.
In relation to the mother’s financial circumstances, they also provide a justifiable basis for an order for costs to be made. I observe that the absence of evidence from the father as to his financial circumstances cannot and should not prevent an order for costs being made given that it has been his choice not to attend the hearings.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 9 May 2011.

Associate:

Date: 9 May 2011