KETTLE & BAKER & GREEN (INTERLOCUTORY APPEALS)
[2010] FamCAFC 77
•14 April 2010
FAMILY COURT OF AUSTRALIA
| KETTLE & BAKER & GREEN (INTERLOCUTORY APPEALS) | [2010] FamCAFC 77 |
| FAMILY LAW - APPEAL – Application in an appeal – Appellant seeks a number of orders – Leave to appeal against orders made in 2004 – Injunction to stop proceedings in the Federal Magistrates Court – Disqualification of the judges who determined a previous Full Court appeal in this matter – Adjournment of appeal hearings “to a date to be fixed” – No sensible submissions made by the appellant to support the application – Application dismissed. FAMILY LAW - APPEAL – From the Federal Magistrates Court – Appeals against interlocutory orders – Respondent mothers seeking departure orders from child support assessments – Federal Magistrate dismissed the appellant’s application for summary dismissal – Refusal to grant stay of proceedings pending determination of the appeals – Mothers’ applications originally filed in 2004 – Litigation in the proceedings longstanding and complicated – Assertion of procedural unfairness – Whether s 66E applies – No merit in appeals – Appeals dismissed. FAMILY LAW - APPEAL – COSTS – Application for costs on an indemnity basis – Where appeal entirely unmeritorious – Disparity of parties’ financial circumstances – Appeals from orders made prior to the final hearing – Letter from respondents’ solicitors advising appellant of the unmeritorious nature of appeal – Indemnity costs order made for a fixed sum. |
| Family Law Act 1975 (Cth) |
| Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Kettle & Baker & Green [2009] FamCAFC 113 Kettle & Baker & Green [2010] FamCAFC 73 Xuereb & Xuereb [2007] FamCA 601 Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029 |
| APPELLANT: | Mr Kettle |
RESPONDENT: RESPONDENT: | Ms Baker Ms Green |
| FILE NUMBER: | BRC | 6527 | of | 2009 |
| BRC | 6532 | of | 2009 |
| APPEAL NUMBER: | NA | 22 | of | 2010 |
| NA | 23 | of | 2010 | |
| NA | 39 | of | 2010 | |
| NA | 40 | of | 2010 |
| DATE DELIVERED: | 14 April 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland & Murphy JJ |
| HEARING DATE: | 12 April 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 November 2009 and 22 February 2010 |
| LOWER COURT MNC: | [2009] FMCAfam 1488 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENTS: | Ms Ellis Burchill & Horsey Lawyers |
Orders
The appeals NA 22, NA 23, NA 39 and NA 40 of 2010 are dismissed.
The application in an appeal filed by the appellant on 7 April 2010 is dismissed.
The appellant pay to the solicitors for the respondents the costs of each respondent fixed in the sum of $2,500.
IT IS NOTED that publication of this judgment under the pseudonym Kettle & Baker & Green (Interlocutory Appeals) 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 BRISBANE |
Appeal Number: NA 22 of 2010
NA 23 of 2010
NA 39 of 2010
NA 40 of 2010
File Number: BRC 6527 of 2009
BRC 6532 of 2009
| Mr Kettle |
Appellant
And
| Ms Baker |
Respondent
And
| Ms Green |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Kettle appeals from orders of an interlocutory nature made by Federal Magistrate Jarrett in relation to the applications by two mothers for child support for the children of Mr Kettle. Although leave to appeal is required and that is what Mr Kettle sought in two of his notices of appeal, namely in NA 22 and NA 23 of 2010, we proceeded to deal with the appeals without addressing the question of leave to appeal in the interests of expedition. No objection was taken to that course.
Mr Kettle is the father of one child with Ms Baker and two children with Ms Green. As we have referred to the appellant as “the father” and the respondents as “the mothers” in the previous Full Court decision, we shall continue to do so in these reasons.
Proceedings commenced when the mothers filed applications on 14 October 2004 for departure orders from child support assessments by way of a “lump sum” payment. The father is in arrears of his child support obligations.
There have, since the filing of the applications, been a number of hearings in these proceedings in the Family Court and the Full Court of the Family Court. The matter was transferred to the Federal Magistrates Court on 24 July 2009 for reasons which are later explained in this judgment.
Background
Litigation in these proceedings has been longstanding and complicated.
The reasons for judgment in the Full Court decision Kettle & Baker & Green [2009] FamCAFC 113 contains some necessary background to these appeals:
3.At some time prior to July 1994 when their first child, a daughter, [M], was born, the father and Ms [Green] began a relationship. They apparently only lived together for a period of about a year (August 1998 to August 1999). Their second child, a daughter, [A], was born in December 1999.
4.After the father and Ms [Green] separated, their two children remained living with their mother, but spent time with the father.
5.Following his separation from Ms [Green], the father began a relationship with Ms [Baker], who gave birth to a son, [B], by the father in August 2000. For a time Ms [Baker] lived part of the time on the father’s farm, while maintaining her own flat in a nearby town.
6.The father and Ms [Baker] separated in early 2001, with the child, [B], staying with his mother, apart from a two week period in October 2005 when he stayed with the father.
7.On 14 October 2004 both Ms [Green] and Ms [Baker] filed applications stated to be under ss 116, 117 and 118 of the Child Support Assessment Act 1989 seeking by way of “departure order” lump sum child support. Both mothers alleged in their affidavits (also filed 14 October 2004) that the father was in arrears with his child support obligations (apparently as assessed by the Child Support Agency).
…
10.The child support departure applications of both mothers, and also their applications for parenting orders, were heard by Bell J in the Family Court on 13-17 November 2006. On 24 November 2006 his Honour delivered an oral judgment and made orders.
…
15.On 22 December 2006 the father filed notices of appeal against his Honour’s parenting and child support orders in the proceedings involving Ms [Baker] (Appeal NA 2/07) and in the proceedings involving Ms [Green] (Appeal NA 3/07). These are two of the appeals now before us (albeit having been re-instated as will be later explained).
16.On 31 January 2007 Bell J re-issued in amended form his orders of 24 November 2006 in the proceedings between the father and Ms [Green] and also in the proceedings between the father and Ms [Baker]. We were informed by counsel for Ms [Green] and Ms [Baker] that the amended orders were issued following a letter to his Honour’s Associate from the solicitor for Ms [Green] and Ms [Baker]; that it could not be confirmed whether or not that letter was copied to the father; and that there was no further hearing or communication before the amended orders were issued to the parties.
…
22.On 20 February 2007 the father filed notices of appeal against the amended orders made in the proceedings involving Ms [Green] (NA 20/07) and in the proceedings involving Ms [Baker] (NA 19/07). These two appeals are also now before us (again having been re-instated).
23.On 17 May 2007 Ms [Green] filed an application (together with a supporting affidavit) in the Family Court seeking that she be appointed a trustee (under Chapter 20 of the Family Court Rules 2004) for the sale of the father’s farming property and that out of the proceeds of sale (after payment of the costs of sale and other incidental costs): the sum of $125,140 be held in trust for the discharge of the father’s child support liabilities; costs liabilities of the father pursuant to orders of 30 August 2005 and 5 July 2006 be discharged; and the balance paid to the father.
24.On 13 June 2007 Ms [Green] filed an amended application (together with supporting affidavit) seeking that the trustee to be appointed for the sale of the father’s farming property be a solicitor (rather than Ms [Green] herself), and that out of the net proceeds of sale of the property the father’s liabilities under a costs order of 4 April 2007 and any further costs liabilities incurred in connection with the proceedings also be discharged (in addition to the liabilities referred to in her original application filed 17 May 2007).
25.A similar application and similar amended application had been filed by Ms [Baker] (with supporting affidavits) on 17 May 2007 and 13 June 2007, respectively, seeking the appointment of a trustee (ultimately the same solicitor as sought by Ms [Green]) for the sale of the father’s farming property. The amount sought to be held on account of the father’s child support liability to Ms [Baker] was $113,350 (with the other liabilities to be discharged being as in Ms [Green’s] original application and amended application).
26.These applications for the appointment of a trustee for sale of the father’s property were ultimately heard by O’Reilly J on 5 September 2007 - Bell J having disqualified himself from further hearing the father’s proceedings on 29 May 2007.
27.A further affidavit in support of the applications for the appointment of a trustee for sale had been filed by Ms [E], the solicitor for both Ms [Green] and Ms [Baker], on 30 August 2007 apparently for purposes of the hearing on 5 September 2007.
28.On 7 September 2007 O’Reilly J published reasons for judgment and made orders appointing a solicitor, Mr [S], as trustee for sale of the father’s farming property for the purpose of paying to the solicitors for Ms [Green] and Ms [Baker], the amounts, respectively, of $125,140 and $113,350 (as provided in Bell J’s orders of 24 November 2006 and 31 January 2007) and also paying various costs orders referred to in Order 7 of her Honour’s orders of 7 September 2007.
29.On 5 October 2007 the father filed a notice of appeal (NA 69/07) against O’Reilly J’s orders of 7 September 2007. This appeal is also one of the five appeals now before us.
The Full Court allowed the appeals from the orders of Bell J and O’Reilly J in part. As a result of the orders made, the only outstanding issue between the parties related to child support. The mothers’ applications were remitted for rehearing in the Family Court.
On 24 July 2009, Murphy J made orders transferring the matter to the Federal Magistrates Court. In his reasons for judgment, his Honour said the following:
16.The matter comes before me today as the case management judge in this court so as to deal with the order for remission made by the Full Court.
17.I sought submissions from Ms Ellis who appears on behalf of the each of the mothers, and from [the father], who appears for himself, as to whether the matter ought be transferred to the Federal Magistrates Court.
18.[The father] did not argue against the transferring of the matter.
19.Ms Ellis did. Her two primary submissions against the transfer relate to delay and the potential for the husband to be, as it were, litigious in the sense of using all available opportunities under the legislation to appeal any decision.
…
29.Proceedings to transfer can occur pursuant to section 33B of the Act on the initiative of this court. I propose to transfer the matter on the initiative of this court pursuant to that section.
30.In doing so I have taken into account the factors enumerated at rule 11.18 of the Family Law Rules 2004. That rule lists a number of matters that the court may take into account when exercising the discretion.
31.I have taken account of the matters enumerated in that rule, and it seems to me that, by reference to some of the more relevant of those matters, that:
(a)the matter is likely to be heard earlier in that court.
(b)that court promulgates itself as a court in which proceedings are likely to be less costly and more convenient to the parties.
(c)that court has within it a Federal Magistrate dealing specifically with the issue of child support;
(d)as a result, one might assume that particular expertise and particular procedures appropriate to the hearing of child support cases [attach] to that Federal Magistrate.
32.I have also taken into account the financial value of the issues in the case, having been made aware of those matters whilst a member of the Full Court in the appeal.
33.I have also taken account of the complexity of the facts, legal issues, remedies and procedures, and nothing in those factors, in my view, preclude the Federal Magistrates Court from dealing with the matter.
34.In all of the circumstances it seems to me that the issue of child support is better dealt with, in the particular circumstance of this case, in that court and I transfer it accordingly.
The proceedings subsequently came before Jarrett FM.
On 13 October 2009 the father filed an application in a case which sought that the “applications of the two respondents filed in 2004 and relating to child support sought, be dismissed”. It seems that the Federal Magistrate was prepared to treat that application as a response to the mothers’ departure applications.
On 28 October 2009 the mothers each filed what is described as “further amended departure applications” in relation to child support. The applications were in the same terms, save for the amount of child support claimed by each mother. Included in the orders sought in those applications were orders for the appointment of a trustee for the sale of the appellant’s properties and that the proceeds of any such sale be used to pay any outstanding child support liability.
On 25 November 2009 Jarrett FM the father’s application for dismissal of the mothers’ departure applications. It is those orders which are the subject of the appeals NA 22 and NA 23 of 2010. As the appeals were out of time they were filed by leave on 24 March 2010.
After the dismissal of the father’s application, the matter came on for mention before Jarrett FM on 22 February 2010. On that day, the father made an oral application for a stay of proceedings pending the hearing of his appeals. It is apparent at the time the application was made, no appeals had been filed because the father required leave to do so. The Federal Magistrate refused the father’s application for a stay and made orders setting the matter down for final hearing on 16 April 2010 and for the preparation for that hearing. The father appeals against those orders in appeals NA 39 and NA 40 of 2010, which were filed within time on 12 March 2010.
The father’s application for leave to file appeals out of time against the orders made by Jarrett FM on 25 November 2009 was heard by May J on 24 March 2010. In her ex tempore reasons for judgment granting the father leave, her Honour said:
7.I would have to say in relation to the merits of the appeal that they are marginal. It is difficult to immediately see that this appeal can be successful. However, it is also wrong to suggest that there is no possibility that it could be successful. One of the difficulties in my saying this is that I do not have the judgment of the Federal Magistrate.
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10.Finally, I am also concerned about the question of prejudice to the two respondents. I have been handed a certificate relating to each of the mothers, if I may describe them that way. In relation to Ms [Baker], the child support debt is $11,117.40 and in relation to Ms [Green] it is $18,179.94. It is a matter of considerable concern that these children are receiving no financial support from their father.
11.For that reason, if leave is granted, the appeals must be expedited and heard as a matter of urgency.
Orders were made consolidating the four appeals and listing them urgently for hearing before the Full Court on 12 April 2010. As we have already observed, the matter is set down for a final hearing before Jarrett FM on 16 April 2010.
Application in an appeal
On 7 April 2010 the father filed an application in an appeal which sought a number of orders, including:
2.Appellant has Leave to file an appeal out of time against the decision of Justice Murphy on 24 July 2009, purportedly pursuant to the orders of the Full Court rendered on 7 July 2009, to order the rehearing of certain matters by the Federal Magistrates Court in contravention of the specific terms of said Decision of the Full Court.
3.An injunction issue to prevent further hearing of the matters appealed from until resolution of these appeals or further order of this Full Court
4.That Justices Murphy, May and Finn excuse themselves from further hearing any appeal or other matter of the appellant’s.
5.The Court will complete compliance with Order 1 made on 3 March 2008 given by the Full Court that Appellant be provided with a transcript of that day’s hearing, given that only transcript of the morning’s proceedings was previously provided.
6.Appellant has Leave to adduce further evidence in the form of a further appeal book with the content to be agreed with the Appeals registrar.
7.Adjourn the hearing of these appeals to a date to be fixed .
In a supporting affidavit, also filed on 7 April 2010, the father said the following:
1.The great and unnecessary haste with which these appeals have been brought on has already caused my legal rights to have been negatively impacted in a way the Law will not allow. For that and other reasons, I ask that these appeals be adjourned to a date to be fixed. So great is the haste and pressure involved that I do not even have time, here, to outline fully the reasons why this is the case.
2.Concurrently with preparation for these appeals being ‘urgently’ heard, I have had to deal with Federal Magistrate Jarrett’s very recent refusal to deal with my application, properly before him, seeking a Stay. He did not determine it, he quite contrary to Law, just ignored my application and ordered me to proceed to comply with his orders preparatory for the trial these appeals of mine should in due course render void. That exigency has placed an impossible workload on myself, my family and others who assist me when they have time available. …
3.Contrary to Magistrate Jarret’s [sic] view, the prospects of success of my appeals is quite enough to justify an Injunction now being ordered to restrain any further hearing by him or another of the matter appealed from. I below set out some reasons for this.
…
6.I ask that the justices who presided over my earlier appeal disqualify themselves because in that appeal, I was denied procedural fairness in many ways and in their decision, they completely ignored and did not address some very substantial arguments, leading me to not be able to trust them to be fair. I only today was advised as to who it was intended should be on the bench of these appeals.
Discussion
We dealt with the father’s application at the beginning of the appeal hearing.
In relation to paragraph 2, which seeks leave to appeal from the decision of Murphy J on 24 July 2009, we observe that the father can make that application in the usual way by filing an application, supporting affidavit and draft notice of appeal in the Appeals Registry. Whether leave should be given would then be determined after considering the delay in filing the appeal, the merits of the proposed appeal, and any prejudice to the respondents. We would add by reference to the decision of Murphy J given on 24 July 2009 especially at paragraph 18 that the likelihood of leave being given is remote.
In relation to paragraph 3, it was explained to the father that the Full Court was not prepared to issue such an injunction.
Paragraph 4 seeks the disqualification of the judges who sat on the previous Full Court, being Finn, May and Murphy JJ. The father set out in paragraph 6 of his supporting affidavit his submissions on this issue. He further submitted during the hearing that his argument regarding s 66E of the Family Law Act 1975 (“the Act”) was before the Full Court in 2008 but was not addressed in the reasons for judgment.
We are not satisfied that there is any basis in those submissions for the disqualification of those judges.
In relation to paragraph 5, the father complains that he never received a complete copy of the transcript. We are unable to see that this has any bearing on the appeals before us.
With respect to paragraph 6, the father seeks further evidence be placed before the Full Court. After some discussion with us, it was clear that he could not identify what material he required which was not in the appeal books. In any event, we indicated that should it become evident that the Full Court did not have any material to which he would like to refer in his submissions, we would endeavour to locate it on the file and have regard to it. There were no such documents.
Finally, in relation to the father’s application that the appeals be adjourned “to a date to be fixed”, there is no sensible submission made by the father as to why such an order should be made.
Conclusion
It can be seen that the father’s claims have no merit. We would not allow any part of the father’s application.
The Appeals
The application for summary dismissal – NA 22 and NA 23 of 2010
To provide some insight into the father’s case before the Federal Magistrate and also before us, we set out the following exchange between the father and the Federal Magistrate on 25 November 2009:
[MR KETTLE]: Your Honour, these applications were brought originally in contravention of the mandated process requiring the support of the Child Support Agency registrar. Section 66E prohibits the hearing of them. The applicants could reapply with current applications rather than five-year-out-of-date applications.
…
HIS HONOUR: Okay. Alright. I mean, the reason we got the matter on today was to check that the valuation process was under way, because things seem to be moving very slowly, and there were little obstacles in the path of everything. … [Mr Kettle], the argument that you’ve just made, that sounds like an application by you to have these applications dismissed. Is that what it is?
[MR KETTLE]: Yes, your Honour.
HIS HONOUR: Right. Well, we can deal with that at the trial, can’t we?
[MR KETTLE]: Well, it would save the court’s time.
HIS HONOUR: Right. Did you give the other side any notice that you would make this sort of application?
[MR KETTLE]: The application in the case was put before you on 13 October, your Honour.
HIS HONOUR: Yes. Didn’t I deal with it on that day and dismissed it?
[MR KETTLE]: No, your Honour. You said it’s something like saying it’s considered part of my response to the application, your Honour.
…
HIS HONOUR: I viewed it. I think you are right. I viewed it as your response to the application. ...
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HIS HONOUR: Do you want it dealt with as a preliminary issue, do you?
[MR KETTLE]: Well, all this unnecessary expense of getting valuations and that done if it’s not right to be done, your Honour.
HIS HONOUR: So is that a yes?
[MR KETTLE]: Yes, your Honour.
HIS HONOUR: I see. All right. Well, are you ready to make your submissions about that now? If you want me to deal with it, I’ll deal with it.
[MR KETTLE]: Yes, your Honour.
After hearing submissions, his Honour delivered ex tempore reasons for judgment. The decision is relatively short and we set out below the sections relevant to the appeals before us:
1.This is an application that the respondent to two sets of proceedings seeks to have agitated today. He seeks the summary dismissal of the applications in each proceeding which are described now as further amended departure applications. He wishes his application to be dealt with today.
2.The Federal Magistrates Court has available to it a summary procedure to dismiss applications. The principles upon which the Court exercises that jurisdiction are set out in a decision of Driver FM in a case called Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157.
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4.In this case [Mr Kettle] says that there are no reasonable prospects of these proceedings succeeding. He says that for a number of reasons.
5.The first reason is that this Court is without jurisdiction to hear the cases because they have arrived here via a transfer from the Family Court which was made in circumstances that was not authorised by any Act or order.
6.To explain that a little further, [Ms Baker’s] and [Ms Green’s] applications were heard and determined by Bell J in the Family Court of Australia some time ago. There was an appeal against those orders and some others concerning parenting, and the appeal in respect of the child support proceedings succeeded. There was an order from the Full Court of the Family Court of Australia that these proceedings be reheard. After the remittal for them to be reheard, they were transferred to this Court. Presumably, upon the remittal of the matters for rehearing, the Family Court of Australia has jurisdiction to make directions for the preparation of the matter for another hearing. I say presumably though it seems to me that there is really not much doubt about that. The Family Court has the power under its Rules and, indeed, under the Act to transfer the proceedings to this Court. The fact that the proceedings have been transferred here means that a Family Court judge – or a registrar with the appropriate delegation – has ordered the transfer of the proceedings.
7.As I recollect the provisions that provide for transfers from the Family Court to this Court, there is no appeal against an order to transfer, and if [Mr Kettle’s] argument was right, that would mean that these proceedings have been transferred to this Court through an inappropriate or invalid exercise of power. The applicants in these proceedings would not be able to complain about that by way of appeal, this Court would be without jurisdiction to determine the applications but the applicants may have no redress.
8.Indeed, if [Mr Kettle’s] argument is right, I could not even make an order that dismisses them. In my view to analyse the matter in that way demonstrates that the argument can not be right. I am not satisfied that I am without jurisdiction to deal with the applications.
9.The second reason which is said to lead to the dismissal of the proceedings is that “laches” operates against the applicants in the determination of these proceedings. The proceedings were commenced in 2004. They have been in the system since then, and they were determined by a trial before Bell J, which was the subject of an appeal.
10.Laches is an equitable principle invoked as a shield and not a sword. It is a principle of equity which is often invoked when there is long and inexcusable delay before the commencement of proceedings to enforce an equitable right. This is not one of those cases. These proceedings have been in place for a long time, and they have been the subject of a judicial determination, and a successful appeal. The applicants do not seek equitable relief. The equitable principle of laches has nothing to do with this application or its determination.
11.Thirdly, it is suggested that a res judicata operates against the applicants in this case. No basis is set out in the argument for any res judicata. If there had been a res judicata that operated by reason of Bell J’s findings and orders then, of course, that can no longer bind the parties because those orders have been set aside, and the matter remitted for rehearing.
12.Finally, it is suggested that s.66E of the Family Law Act 1975, upon its proper construction, which includes consideration of the interrelationship of s.66E with the Child Support Legislation, precludes this Court from having jurisdiction to hear such applications.
13.The hearing, it is said, would be procedurally barred, and to hear the applications would be to act in excess of the jurisdiction of this Court. That submission, in my view, can only be described as rubbish. Section 66E precludes this Court from making an order for child maintenance or varying, discharging, or reviving a child maintenance order in circumstances where a person could properly make an application for child support under the Child Support Assessment Act1989.
14.The applications in this case do not seek child maintenance orders. They seek a departure order under section 116, 117, and a lump sum child support order under ss.123 and 124 of the Child Support Assessment Act 1989. There is no child maintenance order sought, there is no child maintenance order sought to be varied, discharged, or revived. And, of course, the phrase “child maintenance order” is defined in the Family Law Act 1975 to have a very particular meaning. In those circumstances, it seems to me, s.66E has no part to play in a determination of this case one way or the other.
15.It not being demonstrated that the applicants’ claims have no reasonable prospect of success, the application for summary dismissal will be refused.
The application for a stay of proceedings – NA 39 and NA 40 of 2010
In relation to the refusal of the father’s oral application for a stay of proceedings, no settled reasons for judgment are available. However, a consideration of the transcript of the proceedings on 22 February 2010 reveals the reasoning of the Federal Magistrate.
It seems that the proceedings were adjourned to 22 February 2010 pending a valuation of the mothers’ property. Ms Ellis appeared for the mothers and the father appeared in person.
Ms Ellis advised the Federal Magistrate that the valuation had been secured, which was “the last item outstanding”, and that the “matter is now ready to be listed for trial.”
The father did not agree and said:
There’s an appeal pending, your Honour, so I need a stay and then if it is determined, according to the law, it will declare the whole process unlawful, and I’ve been told to hand this up.
The father then handed the Federal Magistrate a copy of the draft notice of appeal and application for leave to appeal out of time. The following exchange took place between the Federal Magistrate and the father, by which he made submissions in support of his application for a stay:
[MR KETTLE]: Well, the appeal court could decide on it, your Honour, and there’s a number of reasons, and one of them was the failure of Bell J to conduct the trial in any lawful, proper way. One of my children is in the wrong household and - - -
…
HIS HONOUR: So you’re seeking to re-agitate your appeal against Bell J’s parenting orders?
[MR KETTLE]: That’s been heading for the High Court. It’s been put there and they won’t - they haven’t filed it yet, but they will be filing it because of the Constitution, your Honour.
…
HIS HONOUR: … So, what’s the prejudice to you if I don’t grant the stay?
[MR KETTLE]: The issue of whether this application can even be brought is before the appeal court and if the law was applied, the application would be discontinued, that’s why I asked for a stay, your Honour.
HIS HONOUR: Sure. Let’s say you’re right, you’re right about all of that, and these proceedings should be dismissed, what’s the disadvantage to you, though, in proceeding with these proceedings until the Court of Appeal gives the decision?
[MR KETTLE]: Well, your Honour, there’s a lot of non-disclosure on the other side. The valuation of [Ms Green’s] property is not honest and is undervalued. [Ms Green] has failed to disclose a significant inheritance, failed to declare a level of earnings which regularly funds overseas holidays, which I can’t afford, … and the same applies for [Ms Baker], your Honour. And she doesn’t explain how she can live in a house for several years when she couldn’t possibly afford it on her declared income.
In response to this, the Federal Magistrate correctly said:
But all those things are for you to cross-examine her about it at a trial, aren’t they? That’s why we have a trial, because people put in their affidavits a certain position and the other side doesn’t accept it, so they challenge them at the trial about what they say in their affidavits or what they’ve omitted from their affidavit to demonstrate what their true position really is.
Ms Ellis confirmed that the mothers opposed the father’s application for a stay.
Thereafter, the Federal Magistrate gave the following reasons for dismissing the father’s stay application:
I’m not minded to grant a stay, [Mr Kettle]. I can’t see that there’d be any disadvantage to you in not granting the stay. That’s not the test, ultimately, it’s an exercise of discretion. There are a number of factors involved; the length of time it will take for the matter to come on for hearing in the appeal court – there’s no evidence about that before me, about how long it will take, but my own experience is that matters that go on appeal seem to take some months before they get listed and I can give this matter a trial date relatively quickly. [Mr Kettle] is representing himself, so he’s not meeting the costs of legal representation, and so there will be no wastage there.
The respondents, on the other hand, are meeting the cost of legal representation, and there may be some additional costs incurred by them if the matter was not to be disposed of promptly. In those circumstances, I am not inclined to stay the further prosecution of the application pending an appeal. If, ultimately, my last decision was wrong, then it will be unarguable, it seems to be, that any final orders that I might make following a hearing will also have to be set aside, but one wouldn’t expect the respondents to cavil with that proposition. So, I think we’ll have a trial, [Mr Kettle].
Discussion
The grounds of appeal are incomprehensible. Doing the best we can, there appear to be two claims made by the father in support of his appeals: procedural unfairness and an argument in relation to s 66E of the Act.
Procedural unfairness
At the outset it must be observed that much of the father’s complaints in this respect had no connection with the reasons or orders of the Federal Magistrate, but rather with various processes of the Court. This included some difficulty apparently encountered by him in relation to subpoenas.
Apart from those matters, it was submitted by the father that the Federal Magistrate should not have dismissed his “Application in a Case” referring to it as a “Response”. We can see no merit in this argument. First, the content of the document was such that the Federal Magistrate made correct orders, and secondly that it was the father who insisted that his application be heard.
Furthermore, we note that on 13 October 2009 the Federal Magistrate made orders in relation to the father’s application in the following terms:
1.That paragraphs 1 and 2 of the Application in a Case filed by leave today be treated as the father’s current response to the mother’s application for child support.
2.That paragraph 3 of the Application in a Case filed by leave today be dismissed.
The father did not appeal from those orders.
Thus it is clear that the father asked the Federal Magistrate to determine his application as a preliminary matter and indicated that he was ready to make submissions in support of it.
Section 66E
Section 66E of the Act provides:
(1)A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant) against, or in favour of, a person (the respondent) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.
(2)Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).
(3)This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A. (emphasis added)
The father submitted that there is no difference between “child maintenance” and “child support”. In particular, he relied upon paragraph 6 of the decision in Xuereb & Xuereb [2007] FamCA 601, where Cronin J stated:
6.In my view therefore as s 139 is not a separate head of power I have to rely on the provisions of s 141 to obtain any power to make any order, and on that basis I do not think that there is anything other than a stop gap measure in s 139 and because of the fact that there is already an assessment in place the only course of action open to the applicant is to seek a departure application. So on that basis I do not have jurisdiction to make an order under s 139.
The father holds the view that it is beyond the power of the Federal Magistrate to make the orders sought by the mothers.
It is correct that this issue was argued by the father before the Full Court in the last appeal. It is also true that it was not directly dealt with on that occasion. That issue was then but one among many and varied “grounds of appeal” and among other, more nebulous, complaints. It was not necessary to deal specifically with it; it had no merit then and it has no merit now. Other matters, all central to the decision in that appeal were decisive and required discussion.
The provisions of s 66E do not in any manner prevent the hearing of this matter by the Federal Magistrate. We agree with the reasons given by the Federal Magistrate and that part of his judgment relating to this issue.
Conclusion
We see no merit in the appeals from the order the Federal Magistrate made on 25 November 2009 dismissing the father’s application. Thus, there is no utility in considering the stay application or the appeal from the refusal of the Federal Magistrate to stay the proceedings.
Costs
At the conclusion of the hearing of the appeal we heard submissions in relation to costs. Having determined that the appeal should be dismissed we need only refer to the application on behalf of the two respondents.
Ms Ellis, the solicitor for the mothers, asked for costs on an indemnity basis. She explained that neither of the mothers is in receipt of legal aid and that she has a Costs Agreement with each of them. The sum estimated for the costs of each mother is between $2,000 and $3,000. Apparently Ms Ellis’s hourly rate is $250 plus Goods and Services Tax. This is a modest claim on an indemnity basis as the current rate as prescribed in the Rules for the work of a lawyer is $192.90.
An order was made on 24 March 2010 that the father pay the costs of the mothers to be assessed. That order was made on the occasion of the father being given an extension of time to file two of these appeals.
As always, a significant factor is the financial circumstances of each of the parties. In this case Ms Ellis informed us that each of the mothers is dependent on Centrelink benefits. The children have apparently received no financial benefit from their father since mid-2008. In addition we were told that for the purpose of the Child Support litigation before the Federal Magistrate the property on which the father resides is valued at $3,000,000. Apparently the father disputes the basis of that valuation.
The response of the father seeking that no order for costs be made was that the mothers are in receipt of Centrelink benefits and that he has the children with him during the school holidays and every second weekend. The father told us that he believes that Ms Green has received an inheritance and that she lives in her own home.
In correspondence from the father subsequent to the hearing of the appeal, it seems that he wished us to appreciate that the solicitor would have done the same work on each file.
The particular factors that justify an order for costs in this case, by reference to s117(2A), are as follows:
·The unmeritorious nature of the appeal;
·The parties’ respective financial circumstances; and
·The nature of these proceedings including the necessity to obtain leave to appeal and that the matter concerned interlocutory orders made prior to the hearing of the trial in relation to child support.
Having determined that the father should pay the mothers’ costs we now consider the application for costs on an indemnity basis. The principles related to such discretionary decisions are well known. On many occasions in this and in other courts it has been said that there must be some “exceptional” circumstances.
In providing a number of examples where a court might properly consider an award of indemnity costs, Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 gave as an example “the making of allegations which ought never to have been made or the undue prolongation of the case by groundless contentions”. The second applies in this case.
It is important to note, however, that the categories of cases giving rise to an indemnity costs order are not limited. In Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029 Lindenmayer and Holden JJ, citing Sheppard J in Colgate Palmolive, said at 87,471:
All that is required is that the Court asked to exercise the discretion be satisfied that some ‘particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis’.
In this case such an order should be made for two reasons. First, there was no proper basis to the appeals and secondly, a letter was written by the solicitor to the father in the following terms:
We refer to the abovementioned matter and to the recent Hearing where you were granted leave.
You will recall that an order was made that you are to pay out the costs of that appearance.
You may also recall Her Honour’s comments regarding the tenuous nature of your appeal, that is, that your grounds are extremely weak.
We invite you to withdraw your appeal forthwith.
If you do withdraw your appeal then we will not enforce our costs order against you at any stage including after the hearing before Federal Magistrate Jarrett and from the proceeds of the sale of your property. However, if you proceed with the appeal we will be seeking a costs order against you for the appeal itself, on the 12 April 2010, on an indemnity basis. This means that we will be seeking that you meet our client’s costs of an incidental to that appeal in entirety.
We reserve our right to tender this letter in support of any costs application made.
We intend to order (to avoid the further trouble and expense of an assessment of costs) that the costs be fixed. In making an order that the appeals be dismissed we will also order that the father pay to the solicitors for each of the mothers the sum of $2,500 in relation to the costs of the appeals.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 14 April 2010
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