MALAK & MAIRIE
[2011] FamCAFC 134
•21 June 2011
FAMILY COURT OF AUSTRALIA
| MALAK & MAIRIE | [2011] FamCAFC 134 |
| FAMILY LAW - APPLICATION FOR LEAVE TO APPEAL – father seeking leave to appeal against orders made by consent in relation to child support arrears – mother seeks that father’s application and proposed appeal be dismissed – father’s application for leave to appeal and proposed grounds of appeal are in identical terms – whether father afforded procedural fairness – where father relies on paragraphs 1 and 3 of the Litigants in Person Guidelines – father unrepresented at hearing, mother represented by counsel – application before the court was application filed by the mother to enforce payment of child support arrears – enforcement summons listed before Federal Magistrate in July 2010 in a busy duty list – father faxed to chambers the day before the hearing an Application in a Case – Federal Magistrate refused to receive the application as it had not been properly filed and she considered it not properly before the Court – matter stood down for negotiations to take place – consent orders agreed and made – in the circumstances of the case father was afforded procedural fairness – Federal Magistrate’s robust approach justified – no basis established for obtaining leave to appeal – no error of principle made by the Federal Magistrate which affects the father’s substantive rights – application for leave to appeal and Notice of Appeal dismissed. FAMILY LAW - COSTS – governed by s 117 of the Act – mother in a poor financial position to which father’s failure to pay child support has contributed – counsel for the mother sought costs on an indemnity basis – father opposed any order for costs – despite father’s alleged impecuniosity satisfied there should be an order for costs in favour of the mother – father wholly unsuccessful in his application for leave – not persuaded that circumstances are “special” or “exceptional” to justify indemnity costs – if not agreed costs to be assessed on a party/party basis. |
| Family Law Act 1975 (Cth) Child Support (Registration and Collection) Act 1988 (Cth) – s 107A |
| Allesch v Maunz (2000) 203 CLR 172 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Forbes & Bream [2010] FamCAFC 6 Gilmour and Gilmour (1995) FLC 92-591 Hendy v Deputy Child Support Registrar and Anor (2001) 27 Fam LR 641 JEL and DDF (No 2) (2001) FLC 93-083 Munday v Bowman (1997) FLC 92-784 Re F : Litigants in Person Guidelines (2001) FLC 93-072 Rutherford and Rutherford (1991) FLC 92-255 Stead v State Government Insurance Commission (1986) 161 CLR 141 Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029 |
| APPLICANT: | Mr Malak |
| RESPONDENT: | Ms Mairie |
| FILE NUMBER: | MLC | 2355 | of | 2010 |
| APPEAL NUMBER: | SA | 58 | of | 2010 |
| DATE DELIVERED: | 21 June 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 17 November 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 28 July 2010 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Werner |
| SOLICITOR FOR THE RESPONDENT: | Rigoli Lawyers |
Orders
The application for leave to appeal and the Notice of Appeal filed on 23 August 2010 be dismissed.
The father pay the costs of the mother as agreed and in default of agreement as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Malak & Mairie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 58 of 2010
File Number: MLC 2355 of 2010
| Mr Malak |
Applicant
And
| Ms Mairie |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for leave to appeal and, if leave is granted, an appeal by the father against orders made by consent by Federal Magistrate Hartnett on 28 July 2010 with respect to child support arrears in proceedings between the father and the mother.
This appeal is being determined by me as a single judge, following a direction by the Chief Justice.
The mother seeks that the father’s appeal be dismissed.
Background
There was only limited material before the Court in relation to the background of this matter, however, given the nature of the orders under appeal, it is unnecessary to provide a lengthy background.
At the time of the hearing the mother was aged 39 years and the father was aged 40 years.
The parties commenced a relationship in 1997, commenced cohabitation in April 2004 and finally separated in May 2005.
There are three children of the relationship, the child A born in April 2000 and twins born in May 2004.
From July 2005 the father paid the minimum rate of child support.
On 7 November 2008 the mother applied for a departure from the administrative assessment of child support.
On 17 December 2008 a departure determination was made for the period 28 November 2008 to 30 November 2009, requiring the father to pay an annual rate of child support of $7,140.
On 14 January 2009 the father lodged an objection to that determination.
On 11 March 2009 an objections officer reconsidered the departure application and allowed the father’s objection, determining that for the period 1 July 2009 to 30 October 2010 the father’s annual rate of child support be set at $3,366.
On 30 April 2009 the mother lodged an appeal against this decision with the Social Security Appeals Tribunal (“SSAT”).
Final parenting orders were made by Brown J on 8 April 2009 providing for the children to live with the mother, for the mother to have sole parental responsibility for them, and for the two youngest children to spend limited time with the father.
The hearing took place before the SSAT on 1 July 2009 and on
22 September 2009 the SSAT determined to set aside the decision under review and substituted a new departure determination. For the purposes of assessing the amount of child support payable, for the period 1 September 2008 to
30 November 2009 the father’s adjusted taxable income was set at $60,000 and for the period 1 December 2009 to 31 December 2010 his income was set at $45,000.
On 26 October 2009 a child support assessment was issued for the period 1 December 2009 to 31 October 2010. That assessment provided that the father was liable to pay child support to the mother of $484.25 per month.
On 4 January 2010 the Child Support Agency recovered the sum of $1,722.48 from the father by garnisheeing his bank account.
On 13 March 2010 the father agreed that $1,000, being his share of a deposit which had been provided for a purchase of land which did not eventuate and which had been held in a real estate agent’s trust account, be released to the mother towards his child support arrears.
On 16 March 2010 the mother filed a Child Support Enforcement Summons. As at 11 March 2010 the father’s child support debt was $15,591.38.
On 16 June 2010 Federal Magistrate Spelleken made the following interim orders:
1. The [father] is restrained from selling, transferring and further encumbering or in any way dealing with his interests in the real property situate at Goulbourn [sic] and Moss Value.
2. If the [father] deals with the interests in the abovementioned properties the [father’s] interest in the Moss Value property and Goulburn property be charged in favour of the [mother] for the full amount of the child support debt and the [mother’s] costs.
3. The matter be adjourned to a duty list on 28 July 2010 at 9:45am.
On 7 July 2010 a certificate pursuant to s 116(2) of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration and Collection Act”) was provided by the Child Support Agency certifying that the amount of $17,375.14 was at that time due and payable by the father to the mother.
The mother’s application for enforcement came before Federal Magistrate Hartnett on 28 July 2010. At this hearing, the father advised her Honour that he had faxed an application to her Honour’s chambers. That application, an unsealed copy of which was provided to me at the hearing of this appeal, sought orders, inter alia, to “depart from the SSAT (sic) handed down on the
11th March 2009”. Her Honour indicated that because the application had not been filed it was not before her. Her Honour then proceeded with the mother’s Enforcement Summons.
The matter was stood down to enable the parties to attempt to negotiate a settlement and to allow the mother’s counsel to obtain an updated s 116 certificate from the Child Support Agency.
When the matter resumed on the afternoon of 28 July 2010, the mother had obtained an updated certificate, pursuant to which the amount due and payable by the father remained unchanged. However, the parties had reached agreement and the Federal Magistrate made orders by consent in the following terms:
IT IS DECLARED: That as at 28 July 2010 the child support debt owing by the Respondent to the Applicant in relation to the children [A], [B] and [C] stands in the sum of $17,375.14.
BY CONSENT IT IS ORDERED:
DECLARATION OF COURT:
1. That on or before the 29 November 2010 the [father] pay the [mother] the sum of $17,375.14 by way of child support arrears.
2. That on or before the 29 November 2010 the [father] pay the [mother] the costs of this application fixed in the sum of $4,624.86.
3. That upon such and simultaneous with, payment the [mother] provide the [father] with removal of the caveats lodged in the real property situate at Goulbourn [sic] and Moss Vale.
4. That, at the same time, the [father] reimburse the [mother] for the cost of removing the caveats.
5. That upon completion of the exchange, paragraphs 3 and 4 of the orders made at the Federal Magistrates Court at Melbourne on 16 June 2010 shall be discharged.
6. There is liberty to the [mother] to seek to list this matter on short notice with respect to any further enforcement application and penalty interest will accrue on sums remaining unpaid. Such listing is to be before Ms Hartnett FM.
Given that the orders under appeal were made by consent, no reasons for judgment were provided by the Federal Magistrate.
Relevant legal principles – leave to appeal
Section 107A of the Registration and Collection Act provides that no appeal can be brought against an order made by a Federal Magistrate under the Act without leave.
In Rutherford and Rutherford (1991) FLC 92-255 the Full Court (Ellis, Nygh and Wilczek JJ) held that to obtain leave the applicant must show an error of principle and/or the fact that the decision caused him a substantial injustice.
In Gilmour and Gilmour (1995) FLC 92-591, the Full Court (Ellis, Finn and Maxwell JJ), after reviewing the authorities addressing leave to appeal in child support matters, said at 81,843:
However, in granting leave for the reasons which we have in this case, we would not want to be taken as saying that the grounds upon which leave to appeal an order made under either of the Child Support Acts are necessarily the same as the limited grounds upon which leave will be granted in respect of an interlocutory decree under Section 94AA of the Family Law Act. Indeed, we would endorse the suggestions made in Bassingthwaite and Best that a less restrictive approach may be necessary where the order sought to be appealed involves substantive rights or liabilities in relation to child support. In so doing we would, however, draw attention to the unreported decision of Conn v. Martusevicius (delivered in Melbourne on 9 June 1992) in which, in dismissing an application for leave to appeal pursuant to Section 102 of the Assessment Act, both Barblett D.C.J. and Nygh J. in separate judgments expressed the view that the same principles which apply to applications for leave to appeal under Section 94AA of the Family Law Act (being the principles stated in Rutherford) should apply to applications for leave to appeal under Section 102 of the Assessment Act.
In Hendy v Deputy Child Support Registrar and Anor (2001) 27 Fam LR 641, the Full Court (Ellis, Kay and Mullane JJ), with reference to the authorities including Gilmour, reiterated that the Court should not be too restrictive in relation to granting leave to appeal if it is perceived that there has been any error of principle which has affected the applicant’s substantive rights.
More recently in Forbes & Bream [2010] FamCAFC 6 the Full Court (Bryant CJ, Boland and Stevenson JJ) recognised, at paragraph 39, that while generally there must be demonstrated that there has been “an error of principle in the making of the order sought to be appealed or that the order will result in substantial injustice” before permission to appeal is granted, in child support matters it is “inevitable” that the orders will affect the financial position of the parties. This may therefore be a relevant matter to take into account in determining whether to grant permission.
Application for leave to appeal
In the Notice of Appeal filed by the father on 23 August 2010 he sought leave to appeal on the following bases:
1. Litigants in person guidelines (2001) FLC 93-072, paragraph 1 and 3 not followed and the [father] not afforded procedural fairness.
2. The hearing was not adjourned in order for the [father] to file the correct documentation in response to the [mother’s] application in child support arrears.
Proposed grounds of appeal and orders sought
The father’s proposed grounds of appeal are in identical terms to his application for leave to appeal.
The father seeks that his appeal be allowed, that the orders of the Federal Magistrate be set aside, that the “amended response of the [father] be remitted for re-hearing” as soon as possible by a Federal Magistrate other than Federal Magistrate Hartnett and that he be granted a cost certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). It is perhaps appropriate to record at this point that there is in fact no “Amended Response” filed by the father on the court file.
Discussion
The father was unrepresented at the hearing of the appeal and he appeared at the hearing by telephone. The mother was represented by counsel.
The basis of the father’s application for leave is that he was not “afforded procedural fairness”. He says the Federal Magistrate did not comply with paragraphs 1 and 3 of the litigant’s in person guidelines established in Re F: Litigants in Person Guidelines (2001) FLC 93-072. In particular he says that the Federal Magistrate should have informed him that he could apply for an adjournment, and in any event should have adjourned the proceedings to enable him to properly file his application.
Paragraphs 1 and 3 of the Guidelines provide as follows:
1.A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial.
2.A judge should explain to the litigant in person any procedures relevant to the litigation.
The first thing to note is that the “guidelines” are just that. As the Full Court itself said in Re F:
230 We have noticed that a number of litigants in person are endeavouring to use the alleged breach of the guidelines as a ground of appeal in itself. We do not think it is appropriate for the guidelines to be used in this way as there may well be good reason in particular cases to depart from some of the guidelines but always remembering the Court’s obligation to provide procedural fairness and a fair trial. Thus, if in the circumstances of a particular case, a trial judge does not follow the guidelines, it does not follow that there has not been procedural fairness and a fair trial.
Thus, it is necessary to analyse the particular circumstances of this case.
The application before the Court was the application of the mother filed on
16 March 2010 to enforce the payment of child support arrears. The father chose to not file any response to that application.
The arrears were $15,591.38 and they had accumulated over a lengthy period of time.
I have set out above the various applications, determinations, and appeals that had taken place since 2008, with the last assessment being issued on
26 October 2009 stemming from the determination of the SSAT on
22 September 2009.
When the application first came before the Federal Magistrates Court on
17 May 2010 the father sought an adjournment for eight weeks to obtain legal advice. He was given an adjournment until 16 June 2010.
On 16 June 2010, on the mother’s application, orders were made as set out in paragraph 20 above. Again, the father failed to file any documents in relation to this application, and he still did not file any documents in relation to the enforcement application itself. Nor, it seems, did he raise any issue about the SSAT determination.
The hearing of the Enforcement Summons was listed before the Federal Magistrate on 28 July 2010 in her Honour’s duty list. Apparently, on the day before the father faxed to the Federal Magistrate’s chambers an Application in a Case, and he sent a copy of that to the mother’s solicitors. In that application the father sought, inter alia, an order departing “from the SSAT (sic) handed down 11th March 2009” and for “this Court to assess Child support payable for the period of 1 July 2009 to October 2010”.
The Federal Magistrate refused to receive that application or canvass it in any way saying that she was dealing with an Enforcement Summons in a long duty list, that the application had not been filed, and in any event it was not a proper application. The father was out of time to appeal against the determination made by the SSAT, which in fact was made on 22 September 2009 and not
11 March 2009, and an appeal could not be brought on an Application in a Case. Further, there was no indication by the father as to the question of law that he suggested arose from the SSAT’s determination which would allow him to appeal.
At the hearing the father sought to promote the application, but did not seek an adjournment. Instead the hearing was stood down to allow negotiations to take place, as a result of which agreement was reached and a consent order made.
In these circumstances I am not persuaded that the Federal Magistrate failed to afford the father procedural fairness.
The father had had more than ample time to challenge the determination of the SSAT, indeed almost one year, and there were no reasons proffered for the delay. He had a number of opportunities to raise the issue in court in the time it took for the Enforcement Summons to reach a hearing. Further, he had been involved in child support proceedings over a significant period of time, as well as litigation in the Federal Magistrate’s Court over other issues such as parenting and he should well have known what his options were. Indeed, he successfully sought an adjournment of the Enforcement Summons previously.
I accept entirely the submissions of the mother’s counsel as follows:
13.A party’s right at general law to procedural fairness does not exist in a vacuum. It is circumscribed by the rules of court and, in particular, the rules which govern the service of process and the prescribed forms in which process is initiated. The Appellant makes no complaint to the effect that the Enforcement Summons was incompetent, or not in proper form or was served late. There is no basis on which the Appellant can say that he was brought to Court on anything less than proper notice of the application he had to meet or that he was denied an opportunity to reply. If the Appellant failed to prepare his reply in a timely fashion and/or put it in proper form (if, in fact, it was open to him to reply in a formal sense), he is the author of his own misfortune. Procedural fairness does not entitle the Appellant, as of right, to sit on his hands ignoring the application which has been properly brought before the Court and then, at the death knock, initiate a cross application from the bar table.
14.It was open to the Appellant to apply for an adjournment or stay of the Enforcement Summons pending determination of a properly brought appeal against the decision of the SSAT if, in fact such an appeal was properly open to him. He did not do so.
15.The Learned Magistrate quite properly determined that it was not competent for the Appellant to seek to set aside or appeal a decision of the SSAT in reply to the Respondent’s Enforcement Summons and, in any event, to the extent that the Appellant had prepared an application to that effect, it was not in proper form. Her Honour was entitled to refuse to hear any further argument from the Appellant in reply to the Enforcement Summons once the futility of the argument had been established.
I am also reminded of the recent High Court decision of Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. There, an application for leave to amend pleadings during the course of the hearing was granted by the trial judge, and that led to an adjournment of the proceedings. That decision was upheld by the Court of Appeal but the High Court allowed the appeal.
In determining the issue before the Court French CJ held as follows:
5 …Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the Court is a public funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So to is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed. The discretion of the primary judge miscarried.
Gummow, Hayne, Crennan, Kiefel and Bell JJ, in a joint judgment said this:
111.An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases [176]. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
112.A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
113. In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy [177]. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. (Footnotes omitted)
These statements clearly resonate here. To repeat, her Honour was hearing the mother’s Enforcement Summons in a busy duty list, and the father raised for the first time an issue which if allowed would have caused an adjournment of the proceedings resulting in delay, wasted costs, and inefficiencies in the use of a publicly funded resource. This justifies the robust approach taken by the Federal Magistrate in this instance.
The father cited a number of cases in his written summary of argument directed to the issue of procedural fairness. There is no dispute though about the principles involved, and they have been well established in cases such as Stead v State Government Insurance Commission (1986) 161 CLR 141, at 145 – 146. Indeed, in the context of proceedings in the Family Court of Australia, Kirby J said this in Allesch v Maunz (2000) 203 CLR 172, at 184 - 185:
[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statue law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[36] The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the right of the present parties. [Footnotes omitted]
However, nothing from these cases or the quotations from them relied upon by the father provides a basis for finding error on the part of the Federal Magistrate here. Indeed, I find that her Honour afforded the father procedural fairness in the circumstances of this case.
Thus, the father has not established a basis for obtaining leave to appeal, and the application should be dismissed. There is no error of principle made by the Federal Magistrate which has affected the father’s substantive rights, and I am not persuaded that the order will result in substantial injustice.
I observe that even if leave to appeal was granted, given the grounds of appeal raise the same issues as the application for leave, on the basis of the conclusions that I have reached the appeal would not be successful either.
Costs
At the conclusion of the hearing I sought submissions from the parties in relation to the costs of the appeal.
In the event that the application for leave and/or the appeal were unsuccessful, counsel for the respondent mother sought costs on an indemnity basis. Counsel for the mother relied on paragraphs (a) and (c) of s 117(2A) of the Family Law Act 1975 (Cth) in support of this application, namely, the financial circumstances of the parties and that the father will have been wholly unsuccessful if his application for leave and/or appeal is dismissed.
With respect to the mother’s financial circumstances, her counsel referred me to her affidavit and financial statement. He highlighted that the mother is a single mother with the care of three young children and that she is in a poor financial position, to which the father’s failure to pay child support had been a contributing factor.
The mother’s financial statement filed on 16 March 2010 indicates that her average weekly income is $1,082, her expenditure is $1,117, she has minimal property of less than $10,000 in value and liabilities of $14,500.
Counsel for the mother sought costs on an indemnity basis, and in this respect he referred me to the decision of Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248.
The law with respect to applications for costs on an indemnity basis is well settled. The ordinary rule is that where the Court orders the costs of one party to be paid by another party, the order is for the payment of those costs on a party and party basis. There is ample authority that the Court should not depart lightly from that ordinary rule and the circumstances justifying the departure should be of an exceptional kind (for example, see Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029 at 87,470 - 87,471).
In Colgate Palmolive Co v Cussons Pty Ltd, an oft quoted decision of the Federal Court in this context, Sheppard J stated, at 257, that there should be “some special or unusual feature in the case to justify the Court in departing from the ordinary practice.”
Colgate Palmolive has been followed in this Court in cases such as Munday v Bowman (1997) FLC 92-784. In that case Holden CJ drew from the decision of Colgate Palmolive examples of circumstances warranting the exercise of the discretion. In Colgate Palmolive Sheppard J said, also at 257:
The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
There is also no doubt on the authorities that the categories in which the discretion should be exercised to award indemnity costs are not closed (see Yunghanns and JEL and DDF (No 2) (2001) FLC 93-083), nor does the mere existence of facts and circumstances capable of warranting an order for costs on an indemnity basis mean that the Court is obliged to exercise its discretion to make such an order.
Counsel for the mother was not in a position to provide me with a figure as to the amount of costs sought, but sought that any order for costs be as assessed in default of agreement between the parties.
The father opposed an order for costs against him on the basis of his financial circumstances. He submitted that he had not been working all year. He had no income and he was undertaking full time study. He submitted that he was supported by his wife, but that they had recently separated. The father indicated that at that time he was about to register for unemployment benefits. He also submitted that he had a large tax liability and had no equity in any of his assets.
Counsel for the mother referred me to the decision of the SSAT, which was annexed to an affidavit of the mother filed on 16 March 2010, with respect to the father’s financial circumstances. The father has not filed a financial statement to which I can have regard, although I was provided with an unfiled financial statement.
Despite the father’s alleged impecuniosity I am satisfied that there should be an order for costs in favour of the mother. The father has been wholly unsuccessful in his application for leave. However, I am not persuaded that the circumstances are “special” or “exceptional” such that the ordinary rule should not apply and the costs should be assessed on an indemnity basis. Thus, if not agreed, the costs should be assessed on a party/party basis.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
21 June 2011.
Associate:
Date: 21 June 2011