Kettle and Baker

[2011] FamCA 363

FAMILY COURT OF AUSTRALIA

KETTLE & BAKER [2011] FamCA 363

FAMILY LAW – Stay application dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Gallo v Dawson  (1990) 93 ALR 479

APPLICANT: Mr Kettle

RESPONDENT: Ms Baker

INDEPENDENT CHILDREN’S LAWYER: Berck & Associates

FILE NUMBER: BRC 6532 of 2009

DATE DELIVERED: 9 May 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 9 May 2011

REPRESENTATION

THE APPLICANT: Self Represented

SOLICITOR FOR THE RESPONDENT: Ms Ellis of Burchill & Horsey Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Berck of Berck and Associates

Orders

IT IS ORDERED THAT

1. The Application in a Case for Stay of Orders filed on 12 April 2011 is struck out.

AND UPON THE ORAL APPLICATION FOR COSTS by the Respondent and the Independent Children’s Lawyer

IT IS FURTHER ORDERED THAT

1. There be no order as to costs.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6532 of 2009

Mr Kettle

Applicant

And

Ms Baker

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 8 December 2010, I made a number of orders in contemplation of a trial taking place some seven months thereafter in July.  I delivered ex tempore reasons for those orders at that time.  Reference to those reasons will make it clear that those reasons and orders, relate, in turn, to orders by me made approximately a month prior to that on 2 November 2010.  I also delivered ex tempore reasons in respect of those orders on that day.

2. The husband filed a Notice of Appeal on 18 January 2011, appealing the whole of the orders made by me on 8 December 2010.  By those orders, a number of paragraphs of the Application in a Case filed by the husband on 25 November 2010 were dismissed.  Others were struck out. 

3. Orders were also made that the matter be listed for a five day final hearing commencing on Monday, 25 July 2011, and that the matter be adjourned to the Magellan Registrar on 30 March 2011 for making all such directions as might be necessary to prepare that matter for trial.

4. Ancillary orders were also made, for example, in respect of the inspection of subpoena documents and the like.  It might also be noted that those orders included, at paragraph 9, an order consistent with that which was sought by the husband, namely, that a psychiatric report be prepared for the Court by Dr G.

5. I pause to observe that the appeal brought by the husband should, in any event, have, at least in part, proceeded by way of Application for Leave to Appeal against interlocutory orders. But as will transpire, this will become irrelevant when I otherwise deal with the merits.

6. The Notice of Appeal filed by the husband lists eight grounds, but for present purposes, it is, perhaps, necessary to refer more relevantly to two matters. 

7. The first is an affidavit filed by the husband on 12 April 2011, sworn 4 April 2011 that, in essence, sets out the gravamen of the application for stay.  As Mr Kettle, who represents himself today, confirmed orally, the thrust of the application and, indeed, the thrust of the ‘appeal’, it might be thought, is that I ought to have disqualified myself on an earlier occasion and that I should be prevented from any further involvement with the case until such time as the appeal is heard and determined.  That position can be seen reflected in the application for stay filed by Mr Kettle, which provides:

   A stay issue to prevent the further hearing of this matter or any further action being taken with respect to the orders now appealed from [ie the orders of 8 December 2010] from until judgment is given in the father’s appeal filed on 30 March 2011.

8. A further order seeks that:

   A costs certificate issued to the father or, in the alternative, costs be reserved.

9. In the time between the making of the orders on 8 December 2010 and the hearing before me this morning, the directions hearing contemplated by those orders did, in fact, take place on 30 March 2011.  At that directions hearing, the Registrar ordered that the trial dates otherwise set down commencing 25 July be vacated.  The Registrar also ordered that a further case management directions hearing be adjourned until after the determination of the appeal.

10. Plainly enough, then, by reason of orders made by the Registrar, nothing further will occur in this case, let alone anything involving my intervention, until such time as the appeal is heard and determined by the Full Court.

11. I asked Mr Kettle why, in those circumstances, the application had been brought. It seems he relied upon what would otherwise be a correct statement, namely, that any application for a stay should ordinarily be heard by the judge making the order appealed from.  However, while that statement is of itself correct, it ignores the fact that a stay is not necessary because the orders made by the Registrar at the case management directions hearing on 30 March 2011 already provide for nothing to occur until the appeal is heard and determined.

12. In those circumstances, then, the application in a case filed on 12 April 2011 seeking a stay of those orders should be struck out, and I so order.

13. At the conclusion of the proceedings today, the Independent Children’s Lawyer, as she is obliged to do under the Legal Aid Act, and the solicitor for the mother, as she also may be obliged to do under the Legal Aid Act, made applications for costs, each in the sum of $360, being the fee otherwise payable by the Legal Aid Office to each of them for the appearance today. 

14. No material has been filed by either of them, something understandable in light of the circumstances earlier referred to.

15. The general rule in respect of costs in this court is provided for in s 117(1), which is, of course, that each party bear their own costs.  An exception can be seen to apply when some or all of the matters referred to in s 117(2A) of the Act apply.  Ms Ellis, who appears for the mother, submits that I should take into account the financial circumstance of each of the parties; in particular, that she and, for that matter, the Independent Children’s Lawyer, are legally aided, and that the husband has significant assets.  It seems to me that this is a significant factor in this case relevant to an award of costs.

16. I am obliged also to take into account whether either party is in receipt of assistance by way of legal aid, and if so, the terms of the grant, and as I have made clear, the legislation in this state probably requires parties in receipt of legal aid to make applications for costs where circumstances exist so as to justify such an order.

17. The subsection goes on also to require the Court to take account of the conduct of the parties to the proceedings, and whether the proceedings were necessitated by the failure to comply with previous orders.  It seems to me that although this matter has a very long and extremely unfortunate history, that is not directly relevant to the application for costs in these proceedings today.

18. The Court is obliged to take into account whether any party has been wholly unsuccessful in the proceedings.  Plainly enough, the husband has been wholly unsuccessful in these proceedings, and again, that seems to me to be a significant factor in favour of an award for costs.

19. The court has not been made aware of any offer in writing to the other party to the proceedings to settle the proceedings.  Mr Kettle has not forwarded any such letter, that the Court has been made aware of, to the other sides; nor, however, has the Court been pointed to any correspondence from either the solicitors for the mother or the Independent Children’s Lawyer, outlining what might be seen to be or alleged to be the futility of the application brought by Mr Kettle in light of the orders made by the Registrar at the case management directions hearing.

20. The Act makes it plain that in circumstances where the Court considers it appropriate that the facts and circumstances to be taken into account in the exercise for discretion are at large.  So much is made plain by subparagraph (g) of s 117(2A) of the Act.  The earlier tawdry history of this matter has been referred to by me in a number of earlier decisions.

21. However, as I have said, it seems to me that, in respect of this application, this history is not directly relevant.  Mr Kettle says that, as a result of what he was told by the Registrar at the directions hearing, his prospective application for a stay needed to be brought before the judge who made the orders appealed from.  So much is, of course, clear and enshrined by the Rules, and no one suggests that a Registrar did not give that indication to Mr Kettle.

22. Mr Kettle represents himself.  On earlier occasions he has sought to have a non-qualified person appear as a McKenzie friend.  On those occasions, he has indicated the basis for doing so, being that he finds it difficult to represent himself in these proceedings, and again, those issues have been the subject of earlier decisions.

23. In this particular case, it seems to me that Mr Kettle can legitimately say that he was labouring under a misapprehension arising from his self-represented status, and a failure to understand that the orders made by the Registrar have, as a matter of practical reality, the same effect as the order for stay sought by him.

24. Whilst I am aware of what, for example, McHugh J said in Gallo v Dawson about a person’s self-represented status, I nevertheless consider that, in the particular circumstances of this application, it would be unjust to impose upon Mr Kettle an order for costs, notwithstanding that the amount involved in each case is extremely modest.

25. Accordingly, I dismiss each of the oral applications by the mother and the Independent Children’s Lawyer for costs, and order that there be no order for costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 May 2011.

Associate: 

Date:  23 May 2011