LAWRENCE & TAN
[2012] FamCAFC 62
•3 May 2012
FAMILY COURT OF AUSTRALIA
| LAWRENCE & TAN | [2012] FamCAFC 62 |
| FAMILY LAW – APPEAL – Application for an extension of time to appeal – Where the orders the subject of the appeal maintained earlier orders that the father not spend time with the children – Where the grounds of appeal demonstrate an arguable, albeit marginal, case on appeal – Where the delay in filing the appeal is not considerable and is satisfactorily explained – Where the serious prejudice to the mother can be alleviated in part by an order for security for costs – Where the continuation of the appeal should be subject to the payment of the order for security for costs – Application allowed. FAMILY LAW – APPEAL – Application for security for costs – Where previous costs orders made against the appellant father have not been paid – Where no specific details of the father’s financial circumstances were provided – Where the mother’s financial position reinforces the circumstances justifying an order for security for costs – Where the history of the litigation, the unpaid costs orders and limited prospects of success of the appeal make it proper to make an order for security for costs – Application allowed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Ansilda & Hartford [2009] FamCAFC 128 Clivery & Conway [2007] FamCA 1435 Emmett & Emmett [2011] FamCAFC 213 Jones & Jones (2001) FLC 93-080 JRS & KM (2005) FLC 93-223 Luadaka & Luadaka (1998) FLC 92-830 |
| APPELLANT: | Mr Lawrence |
| RESPONDENT: | Mrs Tan |
| FILE NUMBER: | BRC | 3906 | of | 2009 |
| APPEAL NUMBER: | NA | 94 | of | 2011 |
| DATE DELIVERED: | 3 May 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland & Stevenson JJ |
| HEARING DATE: | 18 April 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 11 October 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1152 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Farnell |
| SOLICITOR FOR THE RESPONDENT: | Family Law Solutions |
Orders
That the time for the father to file a Notice of Appeal out of time against the orders of Federal Magistrate Cassidy made on 11 October 2011 be extended to 18 May 2012.
That by 15 June 2012 the father pay to the mother’s solicitor’s trust account the sum of $ 5,000 by cash or bank cheque by way of security for costs of the appeal.
Upon such sum being paid to the solicitor’s trust account:
(a)the moneys be held in a separate account to be dispersed upon further order of the Court; and
(b)the Notice of Appeal be listed for mention before the Regional Appeals Registrar for the making of directions.
In the event that the father fails to pay the said sum by 15 June 2012 the Notice of Appeal be dismissed.
That the father pay the costs of the mother of and incidental to the application for an extension of time to file a Notice of Appeal.
That each party pay their own costs of and incidental to the application for security for costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lawrence & Tan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 94 of 2011
File Number: BRC 3906 of 2009
| Mr Lawrence |
Appellant
And
| Mrs Tan |
Respondent
REASONS FOR JUDGMENT
Introduction
The father filed an application on 21 November 2011 seeking an extension of time to file a notice of appeal against the orders of Federal Magistrate Cassidy made on 11 October 2011.
Her Honour dismissed the father’s application pursuant to s 118 of the Family Law Act 1975 (Cth) (“the Act”) for leave to file an initiating application for parenting orders. The effect of this was to preserve earlier orders which provided for the father to have no direct contact with the children, born in September 2002 and May 2005, and that he be restrained from instituting proceedings under the Act in relation to the children without leave.
The application is opposed by the mother, but if leave is granted, she seeks an order for security for costs in the sum of $11,000.
The matter was first set down for hearing before a single judge of the appeal division. At that hearing it was determined that the application for security for costs of the appeal combined with the application for an extension of time raised more complex questions and should be heard by the Full Court.
Background
The parties met in 2001 and commenced cohabitation in 2002. They married in February 2004, separated in November/December 2004, and divorced in 2006.
Court proceedings commenced in March 2006 when the mother filed an application for parenting orders in the Federal Magistrates Court.
Final parenting orders were made by Federal Magistrate Cassidy on
18 March 2009. In summary those orders provided that the children live with the mother, and that the mother have sole parental responsibility for the children. The father was ordered “to not spend time with or communicate with the children until such time as he is able to demonstrate a change in behaviour and attitude towards the mother and is able to cooperate with the mother in parenting the children”. He was however, “at liberty to send cards and gifts to the children at Christmas and on their birthdays”.
On 6 May 2009 the mother filed an application seeking leave to apply for passports for the children and for permission to take the children on a holiday to New Zealand. The father had refused permission.
In his response, the father asked for final orders providing for the children to live week about with each parent. He also sought interim orders providing for the children to spend time with the father, for the children to be made available for observation by a treating psychologist, and for the eldest child to undergo paternity testing.
On 6 July 2009 the Federal Magistrate ordered that the father’s response be dismissed and made the orders as sought by the mother concerning international travel.
On 18 September 2009 the father filed a further application seeking final orders for the children to spend equal time with each parent. Again it was asked that interim orders be made providing for the children to spend time with the father and in addition for the eldest child to undergo paternity testing.
In response, the mother sought orders having the effect of preventing the father from filing any further application without leave of the court. The mother opposed the father’s application on the basis that there had been no change in circumstances.
Orders were made on 16 December 2009 dismissing the father’s application and preventing him from instituting further proceedings without leave of the court. The orders are as follows:
1.That the application filed by the applicant on 18 September 2009 is dismissed.
2.That pursuant to Section 118 of the Family Law Act 1975 the applicant shall not, without the leave of the Court, institute proceedings under this Act in relation to the children, […] born […] September 2002 and […] born […] May 2005.
3.That the applicant is at liberty to release the family reports of Mr [S] and the Orders and any judgments in the matter to Mr [M] or any psychologist or psychiatrist he attends for treatment.
On 7 April 2011 the father filed an application requesting leave to file an initiating application and an application for contravention.
An order was made on 25 May 2011 requiring the father to serve his material on the mother. The application was listed for 13 July 2011 to consider whether “the matter should be re-opened”. The father relied on a report of a psychologist, Dr R.
On 13 July 2011 an order was made for a family report to be prepared by Ms M. The purpose of the report was to assist the court in determining whether there had been a change in circumstances in terms of the order made on
18 March 2009.
On 6 October 2011 the applications were heard by Federal Magistrate Cassidy. There was no oral evidence from either party, nor were the expert witnesses cross examined. Orders and reasons were delivered on 11 October 2011. It is from these orders which the father now seeks to appeal.
The orders were expressed on a final basis, namely that all outstanding applications filed by the father be dismissed. Costs were reserved, and on
29 November 2011 an order was made for the father to pay the mother’s costs fixed in the sum of $4,059.
The father’s application for an extension of time to file a notice of appeal was filed on 21 November 2011, only a short time after the time to appeal had expired.
Application for an Extension of Time
We intend to deal with the father’s application first as it may not then become necessary to consider the application for security for costs.
On 23 January 2012 when the application first came before Justice May sitting as a single judge of the appeal division, the following orders were made:
1.The father file an amended notice of appeal on or before 4.00 pm on 24 February 2012.
2.The father’s application for leave to appeal out of time and the mother’s application for security for costs be adjourned to the Full Court sitting in Brisbane in the week commencing 16 April 2012.
3.The parties attend upon the Appeals Registrar for directions.
4.The costs of both applications be reserved to the Full Court.
The father, who was and remains self represented, submitted on that occasion that he would be seeking leave to amend his notice of appeal. He said that a solicitor from law firm B had recommended that the notice of appeal be amended, and that the solicitor would be representing him at the appeal hearing. The father has not filed an amended notice of appeal.
When the matter came before the Appeals Registrar on 27 February 2012 the following orders were made to prepare the matter for a hearing before the
Full Court:1.That the Appellant be responsible for the preparation of the appeal books.
2.That the Appellant prepare Appeal Books in accordance with the attached Settled Appeal Index.
3.That the Appellant on or before 4pm on Thursday 15 March 2012 file 4 copies of the Appeal Books, together with a certificate pursuant to Rule 22.20(2) of the Family Law Rules 2004, in the Brisbane Registry and deliver 2 copies of the Appeal Books to the Respondent, together with a copy of the certificate.
4.That the Appellant file and serve the Summary of Argument and List of Authorities upon which he wishes to rely on in relation to the application in an appeal for extension of time to file a notice of appeal and application for security of costs by 4.00pm on Thursday 22 March 2012.
5.That the Respondent file and serve the Summary of Argument and List of Authorities upon which they wish to rely on in relation to the application in an appeal for extension of time to file a notice of appeal and application for security of costs by 4.00pm on Thursday 5 April 2012.
6.That the Applications in an appeal be listed for hearing on a date to be fixed in the week commencing 16 April 2012 at the Brisbane Full Court sittings.
7.That each party be at liberty to apply for any further directions regarding any question arising out of the appeal book index to the Appeals Registrar upon five (5) days notice in writing to the other parties and to the Appeals Registrar in the Brisbane Registry.
8.That in the event either party seeks to rely on an exhibit at the hearing of the appeal, that the party shall provide photocopies of such exhibit for members of the Full Court and to the other party/parties.
9.That the costs of and incidental to this hearing be reserved to the Full Court.
10.To the extent these orders do not comply with the Family Law Rules 2004 there be dispensation from such compliance.
The only order with which the appellant father has complied, in part, is order 4. On 13 April 2012 he filed a one page summary of argument in response to the wife’s application for security for costs. In oral submissions before us, the father explained he had prepared the appeal books, however these were rejected by the registry because they were in an incorrect format. The father further submitted that he was awaiting the outcome of the two applications before us today before advancing preparation of the appeal any further.
Relevant law
In Clivery & Conway [2007] FamCA 1435 the well known principles referable to such applications were discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
In the draft notice of appeal upon which the father relies, the following is contained under the form’s heading “Leave to Appeal”:
1. My children’s matters have being before the Court for approximately six years.
2. And before Federal Magistrate Cassidy from 2007 to date.
3.In the four years of my children matters before Federal Magistrate Cassidy it is my believe the process is:
a) Racist
b) Bias
c) Oppressive
d) Backward, stereotypes and racial profiles
e) Flawed.
4.The Orders of the Court are extreme and unjust.
5.The Magistrate is confused.
6.I have written several letters of complaint to the Court with regards to the conduct of the presiding Magistrate, unfortunately for my children and myself nothing changed as the process continued to be unfair, unjust and oppressive trial.
7.The lawyer representing the mother was and still a member of the committee at the [omitted] family Contact Centre.
8.I wrote to the Court as I was concerned the actions of the lawyer constitute conflict of interest.
9.The children in question are no longer identified by their names as it is written on their birth certificates once again I wrote the Court concerned the actions of the mother is displacing the children and alienating the children.
10.The mother’s husband was investigated by Queensland Police in relations to the disappearance of “Daniel Morcombe”. Once again (sic) wrote the Court concerned my children might be in danger, the presiding Magistrate think otherwise.
Merits of the appeal
In considering the merits of the appeal it is necessary to first refer to the reasons of the Federal Magistrate.
At the commencement of the reasons her Honour explained the nature of the application before her:
1.This is an application by Mr [Lawrence] to have leave to proceed with an application under s.118 of the Family Law Act 1975 (“the Act”) to file an initiating application in relation to two children.
Her Honour summarised that the father’s case was that he had “done all that was required of him to be given leave to file an initiating application”.
Under a section characterised as “The Law” her Honour said:
8. Section 118 of the Act provides:
“Frivolous or vexatious proceedings
(1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings;
(b) make such order as to costs as the court considers just; and
(c) if the court considers appropriate, on the application of a party to the proceedings--order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
(2) A court may discharge or vary an order made by that court under paragraph (1)(c).”
9.Mr [Lawrence] is seeking for the discharge of order 2 of the Orders dated 16 December 2009 under s.118(1)(c) of the Act. In the marriage of Zabaneh & Zabaneh (1986) FLC 91-766 is a Full Court decision in relation to that power. The court observed at page 75586:
“[75586]…The reason why a party is restrained from instituting proceedings in a case like this, is to prevent multifarious overlapping applications between the parties, which amount in essence to a harassment of the other party, and an abuse of the process of the Court, and which involve enormous expense for both the parties and the legal aid office. But, when one comes to consider whether leave should be granted to institute proceedings, particularly in family law matters, one has at some point to consider, after a certain lapse of time, whether it is reasonable to reconsider the issues.
[75587] The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.”
10. The Court then went on to say this:
“[75587] … In my opinion the appropriate course for his Honour to have taken was to have adjourned the matter for further consideration when that report was available. He should then, if justified, have made directions about the service of the proceedings on the wife and have given directions about the filing and service of further affidavits by each party. That in my view was the appropriate course. In those circumstances I believe his Honour was in error in proceeding immediately to the granting of leave. …”
11. The full court allowed the appeal.
12.The judge in that case considered the application on an ex parte basis. I was conscious of that case when I made the directions that I made in the present case.
13.In the present case I have given the mother an opportunity to file material in relation to the question of leave to proceed and I have also ordered that a family report be prepared by Ms [M]. I considered that it was appropriate that the family report be prepared by a report writer other than the report writer who had done three previous reports in this matter because:
a) Mr [Lawrence] raised concerns about that gentlemen; and
b)Some considerable time had elapsed since the children had been assessed by an independent expert.
14. The father’s psychologist, in section 5 of his report, concludes this:
“[5] Conclusion
I find that Mr [Lawrence] has no specific disorders of psychopathology. However, quite naturally, he is affected emotionally by the Court proceedings, including various insinuations such as drug taking, which were shown to be completely untrue. I would therefore support Mr [Lawrence]’s legal endeavours to regain access to his children on the grounds that he has completed courses on aggression and parenting, and that apart from visible aspects of cultural difference and obvious emotional reactions to the vicissitudes and exigencies of the legal proceedings, he has no intrinsic psychopathology. Fundamentally his mental health is good and he can be considered as a socially responsible person.”
15.The mother’s evidence, in some summary, is that the father’s attitude to her has not changed since the trial. Ms [M]’s [sic] contends at paragraph 51 of her report that she is unable to make any recommendations in this matter:
“[51] … There do (sic) not appear to be any change of circumstances which indicate how the matter can be progressed so that [X] and [Y] can spend time with their father and have the opportunity to develop relationships with him in a manner where there would be no concerns about their physical and emotional safety.”
16.The children were interviewed by Ms [M] and her evaluation of them is contained at paragraphs 49 and 50 of the family report:
“[49] [X] and [Y] presented as well loved and well cared for children and I have no doubt that Mr & Mrs [Tan] are providing the children with a high standard of care. It is important that their care of the children not be undermined by fears and concerns about their safety while they are spending time with Mr [Lawrence].
[50] [Y] aged 6 years presented as a confident and outgoing child. She was only 3 years when she last spent time with her father and she has a few, vague memories. [X] aged 9 years was highly anxious about talking to me about his father and he seemed quite fearful of him. He is very attached to his mother so it is possible that he is affected by her fears and concerns even if she has not directly expressed them to him, but he has some disturbing memories of his father. Mr [Lawrence]’s proposal that the children live with him and spend time with their mother is not realistic given their primary attachment to their mother; the fact that they don’t have a relationship with him and [X] is fearful of him. Mr [Lawrence] is not prepared to see the children at a contact centre again and it is not at all certain that the [omitted] Family Contact Centre would be prepared to extend their services to him again, even if he was prepared to try that course of action again.”
17.I accept Ms [M]’s evaluation of this matter, in particular her evaluation at paragraph 47 where she says Mr [Lawrence] presented himself as a “wronged man”.
“[47] Mr [Lawrence] presented himself as a ‘wronged man’ and a victim of racism and discrimination. He said that he and Mrs [Tan] argued during their relationship but there was no violence or abuse and that he has never physically harmed her or the children. He was very critical of Federal Magistrate Cassidy and of “the system.”(sic) He alleged that Mrs [Tan] resented him spending time with the children on his own and she made false allegations against him, which he disproved but he still did not get to spend time with his children. He said that it was Mrs [Tan] rather than him who misbehaved at the contact centre, but he was refused further use of the service. He said that he has done everything that has been asked of him but he is still not seeing the children. According to Mr [Lawrence]’s view of the world; his anger, distress and frustration is completely understandable. In this, he has the support of his partner, Ms [S] who presented as a quiet and reasonable person.”
18.I do not consider the father should be given leave to initiate an application in respect to his children, having considered the evidence of Ms [M] in particular. The mother’s evidence was unhelpful because it contained untested matters of fact however Ms [M]’s opinion and assessment guided me and I consider that her assessment is of more use than the assessment of the father’s own psychologist.
19. I therefore dismiss all applications with respect to the father.
(emphasis added)
The grounds of appeal as proposed in the draft notice of appeal do not contain proper grounds of appeal, but rather a combination of assertions and evidence. The father asserted that given his compliance with requests of the court, by attending courses and visiting specialists, his application was wrongly denied. In oral submissions it emerged that the father has three possible grounds of appeal, although none of these are articulated in the current notice.
In summary the proposed grounds appear to be as follows:
1.The Federal Magistrate could not have given proper weight to the expert report of Dr R in concluding that leave should not be given.
2.The Federal Magistrate gave too much weight to the report of Ms M and in addition should have allowed cross examination of her by the father.
3.The father was accompanied by a retired pro bono lawyer at the hearing and permission should have been granted to allow the lawyer to act as a McKenzie friend.
Without considering the merits of a possible appeal any more than is necessary to consider the application for an extension of time, it can be seen that subject to the filing of a notice of appeal including the grounds of appeal identified above, there may be an arguable case on that appeal, albeit marginal. However, all else being equal, that is enough to allow an appeal to proceed.
Explanation for the failure to file a notice of appeal within time
The Family Law Rules 2004 (Cth) (“the Rules”) provide for a notice of appeal to be filed within 28 days of the orders being made, and thus it was some
13 days later that the father sought to file his notice of appeal in this matter.
In the affidavit filed in support of the father’s application it is explained that he tried to obtain a transcript of the proceedings before the Federal Magistrate to file in support of his appeal. In oral submissions before us, the father explained his original transcript request was for the incorrect date, and some further confusion as to the correct date followed.
In these circumstances we consider the reason for the delay in filing the appeal is satisfactorily explained.
Possible prejudice
It is this aspect upon which considerable weight must be given, especially in light of the litigation history.
In her affidavit filed 18 January 2012, the mother stated that she finds “the emotional cost of having to return to Court extremely difficult to deal with” and that the stress of the proceedings “places a strain on [her] whole family”. The ongoing litigation is also said to be detrimentally impacting on the mother financially.
Both these contentions are no doubt correct.
Despite those circumstances we are of the view that leave to file a notice of appeal should be granted. There has been an adequate explanation for the failure to file a notice of appeal within the time allowed under the Rules, and there is possible merit in the proposed grounds of appeal. Further, it is relevant that the present state of the orders means that the father has no opportunity for direct contact with his children. The serious question of the prejudice to the mother, and the impact on her by reason of the costs incurred as a result of the father being able to pursue an appeal can be alleviated, at least in part, by an order for security for costs.
Security for costs
Relevant law
A decision to order security for costs and the quantum ordered to be paid is an entirely discretionary matter, guided by the legislation.
The provisions of s 117(1) of the Act must be considered in determining an application for security for costs. Namely, subject to s 117(2) and the considerations prescribed in s 117(2A), each party should bear their own costs.
It is also necessary to have regard to the Rules insofar as they address an application for security for costs. In that regard Rule 19.05(2) provides:
Application for security for costs
…
(2) In deciding whether to make an order, the court may consider any of the following matters:
(a) the applicant’s financial means;
(b) the prospects of success or merits of the application;
(c) the genuineness of the application;
(d) whether the applicant’s lack of financial means was caused by the respondent’s conduct;
(e) whether an order for security for costs would be oppressive or would stifle the case;
(f) whether the case involves a matter of public importance;
(g) whether a party has an order, in the same or another case (including a case in another court), against the other party for costs that remains unpaid;
(h) whether the applicant ordinarily resides outside Australia;
(i) the likely costs of the case;
(j) whether the applicant is a corporation;
(k) whether a party is receiving legal aid.
In a decision of Emmett & Emmett [2011] FamCAFC 213, the Full Court
(May, Ainslie-Wallace & Young JJ) summarised a number of cases in relation to security for costs, namely Luadaka & Luadaka (1998) FLC 92-830, Jones & Jones (2001) FLC 93-080, JRS & KM (2005) FLC 93-223, and Ansilda & Hartford [2009] FamCAFC 128.It is not necessary to exhaustively refer to those decisions however reference to some of them as summarised in Emmett & Emmett is instructive:
59. [In] Jones and Jones (2001) FLC 93-080 the Full Court (Ellis, Kay & Mullane JJ) distinguished the principles to be applied when determining an application for security for costs at first instance from those to be applied on appeal. It was said at 88,377:
21.It has long been recognised that, as a general rule and in the exercise of an unfettered discretion, mere impecuniosity of a litigant who is a natural person, will not of itself be a basis for ordering that person to provide security. There is, however, an exception to that general rule, namely in the case of appeals. See Cowell v Taylor (1885) 31 Ch D 34 at 38, J & M O’Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261 at 264, Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Paton v Campbell Capital Ltd (unreported, Federal Court of Australia, 1 July 1993).
22.The fact that the wife would be unable to pay the costs awarded against her, if her appeal was dismissed, is, in our view, a significant factor to take into account in considering whether to exercise the discretion to order security in favour of the husband, but it is not the only or deciding factor.
23.If an appeal appears to have little merit, a court may be more disposed to make an order for security for costs. Whilst we have not had the benefit of submissions on behalf of the wife, the appeal does not appear to raise matters of principle.
60. Jones was an application to the Full Court that the wife pay $5000 by way of security. There was a long history of litigation. The subject of the appeal was spouse maintenance and costs orders. At the time of the hearing the wife was indebted to the husband for $22,695.87 by way of taxed costs which the wife claimed she was unable to pay. The husband said he had no assets, only debts including $82,244.45 to his solicitors. The wife said she had no assets and was largely dependent on the pension. It can be seen that the circumstances of the matter now before us is not unusual.
…
63. Ansilda & Hartford also raised the consideration of the significance of the fact the litigant was impecunious in the context of an application for security of costs in an appeal. Reference was made to Adult Guardian and Mother’s Parents v B and Child’s Representative (2002) FLC 93-116:
71.It is of course a matter of serious concern that an impecunious appellant may be prevented by the making of an order for the provision of security for the costs of the appeal, from pursuing his or her rights of appeal. However, that concern must be balanced against an equally serious concern for the position of a respondent to the appeal who, in the event that the appeal should fail, and because of the impecuniosity of the appellant, will be left to bear the burden of his or her own costs of successfully resisting the appeal.
72.In these circumstances, the difficult issue of the merits (or otherwise) of the appeal must assume particular significance. As Toohey J observed in Webster and Another v Lampard (1993) 112 ALR 174 at 175:
Where there is an appeal as of right … it is more appropriate to consider the merits of the appeal where security for costs is sought. An appeal may appear to have little merit, in which case a court will be more disposed to order security.
64.Reference was also made to JRS & KM (2005) FLC 93-223 where the mother’s application for security for costs notwithstanding the finding that the father’s appeal had little success and that he would be unable to satisfy an order for security for costs was dismissed. The Full Court said in that case at 79-688 that:
22.… Nevertheless, the right of access to the Court is an important right and any attempt to restrict that right requires careful scrutiny.
23.Notwithstanding the matters which we have identified as supporting making an order for security for costs, we are not persuaded that such outcome would be justified in all the circumstances. On the evidence before us, we are concerned that the making of such order could preclude the father from pursuing his appeal against orders which, inter alia, deprived him of face to face contact with his child, and also restricts his future access to this Court. Not without considerable reservations we thus decline to grant the mother’s application.
65.In Ansilda & Hartford reference was also made to cases in other courts including as follows:
34.We observe that in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 628 Madgwick J in dealing with an application under s 56 of the Federal Court of Australia Act 1976 (Cth) which provides for security for costs on appeal said:
[5] There has long been a rule of practice and justice that poverty is no bar to a litigant. However, the view is taken that there was an exception to this salutary rule in the case of appeals on the basis that the appellant had already had the benefit of a decision of a court. Thus, an insolvent party unsuccessful at the first instance, but seeking to appeal, had not been shut out from the courts on account impecuniosity but, as Ballam LJ put it in Cowell v Taylor (1885) 31 ChD 34 at 38, would be “…only prevented, if he cannot find security, from dragging his opponent from one Court to another”.
[6] The correct, modern approach, I think, was set out in Australian Solar Mesh Sales Pty Ltd v Anderson (1999) 48 IPR 15 at [11] by Sackville J. That is, that the impecuniosity of the appellant enlivens the power of the Court to make an order for security for costs pursuant to s 56 of the Act, but it remains necessary to consider whether, as a matter of discretion, the Court should make an order in favour of the respondents.
35.This case does raise for consideration the balancing exercise of requiring a respondent to defend proceedings against an impecunious applicant where there is little likelihood of any costs order being satisfied with on the other hand the undesirability of impecuniosity in itself denying a right to bring proceedings. Aside from the other matters which the court is required to take into account in that situation, particular importance attaches to an assessment of the likelihood of success and the terms of s 117(1) that, subject to certain matters, each party to proceedings under the Family Law Act shall bear his or her own costs.
66.As mentioned, the merits of the appeal were considered in some detail [in] Ansilda & Hartford, ultimately their Honours found:
55.We have read the reasons of Brown J and they are very detailed and comprehensive. As well, her Honour dealt with all relevant statutory considerations. With the exception of the second area of complaint which we have identified above, we have some difficulty understanding the precise appealable errors contended for in the grounds of appeal. For example we are of the view that ground one is not a ground of appeal. In the result we are of the view that the appeal does not have strong prospects of success. However notwithstanding our concerns, in a broad way, we understand some complaints by the Mother and thus we cannot in this brief examination conclude that the grounds of appeal are entirely hopeless. We therefore propose to proceed on the basis that there may be some arguable grounds in the appeal.
67.We are also of the view that the appeals in this case do not have a strong prospect of success.
68.In this case as in Ansilda & Hartford there are unpaid costs orders. The Full Court found that fact as particularly relevant, a matter which is referred to in 19.05(2)(g) in the Rules.
69.There is always more than one party to litigation. It is clear from the authorities to which we have referred that on occasion, the interests of a party seeking to defend an appeal of doubtful merit must be afforded some protection by the court.
Mother’s submissions
The mother filed an affidavit in support of her application for security for costs on 18 January 2012. She said at paragraph 23:
I am not eligible for legal aid and the high costs of legal fees to come to Court is having a negative impact on my family. I have already spent in excess of $70,000.00 on legal fees. I presently owe my solicitor $2,782.97 which I am paying off by instalments of $500.00 per month. I have at times had to defer these payments when I have been unwell and unable to work or when our household budget has been insufficient to cover our day to day expenses. I am informed by my solicitor and verily believe the costs of the Appeal will be approximately $11,000.00 calculated as follows:-
Costs to prepare and attend hearing on 23 January 2010 $3,000.00
Costs to attend direction hearing regarding appeal books $715.00
Preparation of Brief to Counsel $357.70
Counsel’s fees for preparation for appeal hearing $2,000.00
Counsel’s fees to appear on Appeal $3,500.00
Solicitor’s fee to instruct Counsel on Appeal $1,500.00
Total $11,072.50
Although the first two categories of costs are no longer relevant, it could not be said that the other proposed costs are unreasonable.
In her affidavit the mother explained that over the course of the litigation a number of costs orders have been made against the father, including:
·for the costs associated with the first day of a trial ordered on 14 February 2008;
·for costs in relation to the father’s appeal against the making of a protection order in the mother’ favour in the District Court; and
·for costs fixed in the sum of $4,059.00 ordered on 29 November 2011.
These costs have not been paid, and particular emphasis was placed on this consideration in the submissions of the solicitor appearing on behalf of the mother. In this matter, we accept this as significant, and we note that this is specifically referred to in Rule 19.05(2)(g).
It was also explained that the father has a debt of approximately $30,000.00 to the Child Support Agency. The mother said that since December 2011 she has received three payments from the Child Support Agency amounting to approximately $2,400.00.
The mother understands the father has no assets, although the father has not provided any details of his financial circumstances.
Father’s submissions
The only material filed by the father since the previous hearing is a short summary of argument in relation to the security for costs application. In that the father said:
4)Section 117 (2A) sets out the matters relevant to costs order (sic).
(a)The financial circumstances of each parties to the proceedings. The Applicant is a labourer and the respondent is a self employed hairdresser.
(b)Whether any party to the proceedings is in receipt of assistance by way of Legal Aid. Neither party is in receipt of legal Aid.
(e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings.
5)I am urging the Court to consider sections 117 (2A) subsection (a and e)
6)The fact of the matters are, the Applicant has a partner and two stepchildren ages 17 and 20, the 20 year old is fulltime university student in Sydney and the 17 year old is in year 12 at a private school in Brisbane, the Applicant and his partner are responsible for children’s financial well being, I strongly believe if an Order for security cost is made in favour of the Respondent it will cause the Applicant and his partner a great deal of financial harm which will lead to the withdrawal of my stepson from the private school in which he attends and at the same time lead to withdrawal of the financial assistance given to my 20 year stepson as he is a fulltime university student. Section 117(A) subsection (a)
7)The Judgment of the Court that led to the Applicant’s Appeal was unfair and unjust as the materials provided to the Court by the Family Report Writer, the Applicant and the Respondent was not tested. Section 117(A) subsection (e)
8)Given the above facts I am urging the Court to dismiss the Respondent’s request for a security cost of $11,000.00.
In oral submissions the father told us that he intended to instruct solicitors to appear for him on the appeal. He understood that this would cost him in the order of $15,000. As he would need to provide these moneys to his solicitors, this in part was provided as a reason why he should not be ordered to pay security for costs.
Conclusion
In view of the history of the litigation, the unpaid costs orders and the limited prospects of success of the appeal, it is proper that an order for security for costs should be made.
The particular circumstances justifying such an order as mentioned can be found in the following paragraphs of s 117:
Costs
(2A) 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;
…
(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;
These circumstances are reinforced by the mother’s financial position.
In our view, a proper sum to be ordered is $5,000. Despite our enquiries, the father did not indicate any time period in which he would ask that these moneys be paid. We intend to give the father further time to file an amended notice of appeal, and six weeks to pay the security for costs.
Should the moneys not be paid to the solicitor for the mother, the appeal will be dismissed. Such an order will avoid the mother’s lawyers filing an application seeking dismissal of the appeal should the moneys not be paid.
Costs
Although not conceded by the father, he did agree that the application for an extension of time arose from his failure to file a notice of appeal within time. As we intend to allow his application which has caused the mother to incur costs, it is proper that he meet those costs.
As to the application for security for costs there are no particular circumstances which would justify an order other than the mother’s success in the application, the most appropriate order is that there be no order for costs of this application.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Full Court delivered on 3 May 2012.
Associate:
Date: 3 May 2012
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