Kinnis and Cerley
[2018] FamCAFC 239
•5 December 2018
FAMILY COURT OF AUSTRALIA
| KINNIS & CERLEY | [2018] FamCAFC 239 |
| FAMILY LAW – APPEAL – COSTS – Where the appeal was discontinued by consent – Where the father sought an order for costs against the mother – Where the mother’s appeal was based on a wrong premise – Where there were issues pertaining to the enforceability of the orders and their clarity when compared to orders that were handed up – Where such deficiencies could not be cured by the slip rule – Where the circumstances did not justify an order for costs – Application dismissed. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 22.42 Federal Circuit Court Rules 2001 (Cth) r 16.05(2) |
| Collins and The Victorian Legal Aid Commission (1984) FLC 91-508; [1984] FamCA 13 Sindel & Milton [2018] FamCAFC 232 |
| APPELLANT: | Ms Kinnis |
| RESPONDENT: | Mr Cerley |
| FILE NUMBER: | BRC | 7155 | of | 2017 |
| APPEAL NUMBER: | NOA | 48 | of | 2018 |
| DATE DELIVERED: | 5 December 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | Written submissions received from the respondent on 22 October 2018; from the appellant on 12 November 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 May 2018 |
REPRESENTATION
| FOR THE APPELLANT: | Unrepresented |
| FOR THE RESPONDENT: | Ms T Naidoo (solicitor) |
| SOLICITOR FOR THE RESPONDENT: | GTC Lawyers |
Orders
The father’s application for costs be dismissed.
The parties each bear their own costs of and incidental to the hearing of the appeal on 20 and 21 September 2018.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kinnis & Cerley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 48 of 2018
File Number: BRC 7155 of 2017
| Ms Kinnis |
Appellant
And
| Mr Cerley |
Respondent
REASONS FOR JUDGMENT
On 29 August 2018 the Chief Justice made a direction pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single judge. The appeal was before me on 20 and 21 September 2018 on that basis.
At the hearing of the appeal, it was agreed by the parties that the mother would file a Notice of Discontinuance pursuant to r 22.42 of the Family Law Rules 2004 (Cth) (“the Rules”) in appeal number NOA 48 of 2018. Orders were consequently made by consent discontinuing the mother’s appeal.
Orders were also made setting out a timeline for the filing of written submissions by each of the parties in respect of any application for costs, and that any such application be determined in Chambers. Those submissions have now been received by the Court. The father seeks that the mother pay his costs of and incidental to the appeal; the mother seeks that the parties each bear their own costs.
By way of brief background, the mother appealed final parenting orders made by consent before Judge L. Turner on 3 May 2018. The central issue contained in the mother’s grounds of appeal concerned an assertion that the orders made by her Honour on 3 May 2018 did not reflect the orders agreed to by the parties.
Attached to the mother’s Notice of Appeal were three documents which, on her case, evidenced that central issue:
a)Annexure “A” contained a one page document which the mother asserts she “had signed and agreed to hand to the learned Judge”;[1]
b)Annexure “B” contained the orders handed up by the father; and
c)Annexure “C” contained orders emailed by the father to her Honour’s Associate following the hearing below.
[1] Mother’s grounds of appeal at paragraph 8.
On 21 June 2018 the father filed a Notice of Contention. The father accepted that there were typographical errors in the orders which could be amended pursuant to the “slip rule”.[2] It is not entirely clear what the father meant by this given the assertion at paragraph 49 of his written Summary of Argument on appeal which stated that the “orders subsequently issued by the court remedied those errors”. The typographical errors referred to appear to relate to the orders emailed by the husband to her Honour’s associate (which were not the orders ultimately made by the Court).
[2] Federal Circuit Court Rules 2001 (Cth) r 16.05(2).
There were undoubtedly significant differences between each of the annexed orders referred to. However, the mother’s appeal was premised on her understanding that the orders emailed by the father following the hearing (Annexure “C”), were the orders made by her Honour. Respectfully, the mother has misunderstood what occurred. The orders made by her Honour are predominately consistent with the orders handed up by each of the parties at the hearing before her Honour.
Nevertheless, there were issues with the form of the orders made by her Honour. For example:
a)Order 7(b)(i) states that during 2019, the father would pick up J at 3.00 pm and K at 3.30 pm, however, the orders handed up have a written notation that says “8am pick up”.
b)Order 7(b)(ii) states that in 2019, the children spend time with the father during the “Queensland school holidays being 50/50 either week on week off or three (3) days one week four (4) days the other week and alternating. Friday to Monday on school holidays.” With respect, I am unable to discern what that order means nor can I see how it is enforceable.
Consequently, I stood the matter down to permit the parties an opportunity to come to an agreement as to any corrections to be made to her Honour’s orders. Those negotiations went into the evening, and as a result the matter came before me again on the morning of 21 September 2018. However, ultimately the parties were able to reach agreement and on 21 September 2018 a notation was added to my orders as follows:
A.The parties have otherwise reached agreement in respect of final parenting orders which set aside orders made by Judge L. Turner on 3 May 2018 and it is intended by the parties to approach a Judge of the Federal Circuit Court of Australia today so as to have the new orders made by consent.
A judge of the Federal Circuit Court of Australia kindly made himself available and the orders were made immediately upon the conclusion of the proceedings before me.
The father’s application for costs
In respect of his application for costs, the father asserts as follows:
8.The [mother] was aware from an early date that the [father] asserted that the basis of the appeal was flawed. The transcript made it plain how the orders made by Judge Turner were arrived at and the fact that the consent of each party was provided both on paper and in court. The [mother] should have been aware of the rules which provided a power to both the court and a registrar to vary or set aside an order which did not reflect the intention of the court or which contained a clerical mistake or in which there existed an error from an accidental slip or omission. If that rule had been availed of considerable costs would have been avoided.
9.The Scale of Costs in Schedule 1 relative to the [father] shows a total of $10,376.20 made up of items 103.104.107,108 and counsels fees.
10.The further costs of attending another unavoidable court appearance on 21 September 2018 of a total of $2,970.00. Showing a total of $13,346.20. The [father] seeks an order in that sum.
(As per original)
The mother points out that the father’s submissions contain no evidence relating to the father’s financial position nor to the financial position of each of the parties. Conversely, the mother submits that she:
a)Earns $901.86 per fortnight and does not work ($562.94 comprising Centrelink and the remainder being made up of Child Support); and
b)Has spent legal fees in the amount of $18,454.24 with solicitors and owes money to her mother as a result.
The mother also refutes the suggestion by the father that the errors in her Honour’s orders could be amended by the slip rule, and points to the fact that the parenting orders agreed to by the parties on 21 September 2018 differed significantly to those made on 3 May 2018. That submission should be accepted. The differences which are immediately apparent are as follows:
a)The “old orders” provide for the father to spend time with the children in 2019 on alternate weekends from 3.00 pm Friday until 4.00 pm Sunday, while the “new orders” provide for the father to spend time with the children on alternate weekends from 8.00 am Friday until 9.00 am Monday.
b)The “old orders” provide for the father to spend time with the children in 2020 from 8.00 am on Friday until 9.00 am on Monday, while the “new orders” provide for the father to spend time with the children from 8.00 am on Friday until 9.00 am on Tuesday.
c)In the school holidays the old orders provided for the father to spend time with the children in the unenforceable terms referred to above, while the new orders provide for the father to spend time with the children from 8.00 am every Friday until 9.00 am Monday.
d)Significant changes to the time spent with each of the parties and their children during the Christmas holiday period.
Relevant principles
Section 117(2) of the Act permits this Court to depart from the ordinary position contained in s 117(1), and make a costs order where “the court is of the opinion that there are circumstances that justify it in doing so”. In considering whether such an order should be made, the Court must have regard to the matters referred to in s 117(2A).
The sole ground on which the husband bases his costs application is that the mother was “wholly unsuccessful in the proceedings” as referred to in s 117(2A)(e)). The husband asserts that the mother’s appeal never had any prospects of success. He does not otherwise refer to his financial circumstances, any particular conduct of the wife, nor to any offers to settle beyond the negotiated agreement that occurred at the time of the appeal before me.
In Sindel & Milton,[3] the Full Court said:
92.In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court discussed, at paragraph 41 of their reasons, the effect of s 117(2A) of the Act as follows:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
[3] [2018] FamCAFC 232.
While no one s 117(2A) factor is determinative of the exercise of the discretion inherent in s 117(2), a party being “wholly unsuccessful” can be seen to have particular resonance in the context of an appeal. The first instance judgment is assumed correct subject to establishing appealable error in the context, often, of a broad first instance discretion. Instituting an appeal might be seen as embracing an ‘additional hazard’[4] as a consequence.
[4] Respectfully adopting a phrase used by Fogarty J in Collins and The Victorian Legal Aid Commission (1984) FLC 91-508 at 79,147.
Although the mother’s appeal was based on a wrong premise, there were issues pertaining to the enforceability of the orders as well as to their clarity when compared to the orders handed up and the orders ultimately made. Such deficiencies could not have been cured by the slip rule, particularly in light of the level of the parties’ disagreement and a lack of clarity in the judge’s intentions at the time the orders were made.
Furthermore, the parties engaged in considerable and productive negotiations before me that resulted in orders that differed in substance from the orders that were made by her Honour. The mother submits:
…The Appeal was the correct forum it is submitted to pursue the complaints that the [mother] had with the Orders of 3 May 2018, and the parties were able to negotiate a resolution of the Appeal and the issues with the Orders, resulting in different Orders to that made by Judge Turner on 3 May 2018. Such could not have been achieved by an Application pursuant to Rule 16.05 because the changes that were made were not typographical in nature, but were substantive.
Those submissions should be accepted.
In my opinion the circumstances do not justify an order for costs.
Conclusion
Neither party sought a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
The father’s application is dismissed and the parties are ordered to bear their own costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 5 December 2018.
Associate:
Date: 5 December 2018
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