Meadis and Meadis and Ors
[2019] FamCAFC 146
•2 September 2019
FAMILY COURT OF AUSTRALIA
| MEADIS & MEADIS AND ORS | [2019] FamCAFC 146 |
| FAMILY LAW – APPEALS – COSTS – Where the appellant father consented to an order that his appeal be dismissed during the appeal hearing – Where the father is unrepresented – Where the respondent mother sought an order for costs – Where the father opposed an order for costs due to his impecuniosity – Where the father is incarcerated and relies on his parents for financial support – Where neither the mother or the father is in receipt of legal aid – Where the father’s conduct warrants an order for costs – Where the father is ordered to pay a portion of the mother’s costs – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A) Family Law Rules 2004 (Cth) r 19.18(1)(a) |
| Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207 |
| APPELLANT: | Mr Meadis |
| FIRST RESPONDENT: | Ms Meadis |
| SECOND RESPONDENT: | Mr A Meadis |
| THIRD RESPONDENT: | Ms B Meadis |
| INDEPENDENT CHILDREN’S LAWYER: | Joliman Lawyers |
| FILE NUMBER: | MLC | 11834 | of | 2016 |
| APPEAL NUMBER: | SOA | 92 | of | 2018 |
| DATE DELIVERED: | 2 September 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Alstergren CJ, Aldridge & Austin JJ |
| HEARING DATE: | 6 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3787 |
REPRESENTATION
| THE APPELLANT: | In person by video link |
COUNSEL FOR THE FIRST RESPONDENT: | Mr Testart |
SOLICITOR FOR THE FIRST RESPONDENT: | Harris Lieberman Solicitors |
COUNSEL FOR THE SECOND RESPONDENT: | Did not participate |
| SOLICITOR FOR THE SECOND RESPONDENT: | Dawes & Vary Riordan |
COUNSEL FOR THE THIRD RESPONDENT: | Did not participate |
SOLICITOR FOR THE THIRD RESPONDENT: | Dawes & Vary Riordan |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Did not participate |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Joliman Lawyers |
Orders
The appeal be dismissed.
There be costs fixed in the amount of $5,000 to be paid by the appellant to the respondent.
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 Meadis & Meadis and Ors 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 92 of 2018
File Number: MLC 11834 of 2016
| Mr Meadis |
Appellant
And
| Ms Meadis |
First Respondent
And
| Mr A Meadis |
Second Respondent
And
| Ms B Meadis |
Third Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Background
By a Notice of Appeal filed 13 December 2018, the appellant father (“the father”) brought an appeal against interim orders made by the primary judge in the Federal Circuit Court of Australia on 16 November 2018. The interim orders and reasons provided, amongst other things, for the three children of the marriage to be relocated by the respondent mother (“the mother”) from Town C to the Town D area.
The father is currently unrepresented and appeared from gaol by video link.
The matter came before the primary judge on 14 November 2018 following an Amended Response to Initiating Application being filed 24 August 2018 by the mother for interim orders including a relocation order. At the time of the interim hearing, both parties were represented.
Critical to the mother’s application for relocation was evidence of an incident that had occurred between the mother and father on … July 2018 (“the July incident”). Her evidence was summarised and set out in her Honour’s reasons at [19]–[28]. The mother alleged that the father had, unexpectedly and without invitation, attended the former matrimonial home where the mother lived at the time with the children and assaulted her. The father bound her feet and hands with cable ties, gagged her with “thick grey PVC style tape” (at [21]) and forced her inside the home, where he threatened to kill her and then her family. The mother further deposed in her affidavit filed 31 October 2018 that the youngest child had returned to the matrimonial home and may have witnessed the incident. According to the mother’s evidence, while the father directed the youngest child away from the former matrimonial home, the mother managed to jump through the house, escape through the front door and make her way to a neighbouring property where she received assistance. The police were subsequently called, and the father was apprehended and charged with criminal offences including those set out below at [7]. At the time of the interim hearing, the father was still remanded in custody.
At the interim hearing, the father through his representation, declined to provide any evidence to the Court about the July incident. Through his counsel, the father indicated that he did so on the basis that he intended to plead not guilty to the criminal charges against him, and that providing evidence at the interim hearing would prejudice the defence he sought to run (Transcript 14 November 2018, p.34 lines 25–32). Accordingly, the primary judge relied on the evidence provided by the mother and other information that her Honour was able to “cobble together” (at [11]).
Her Honour delivered extensive written reasons for judgment on 15 November 2018.
At the outset of the appeal hearing, counsel for the mother advised this Court that the father had pleaded guilty to four charges relating to his actions during the July incident at his committal hearing on … May 2019:
1)one count of false imprisonment of the mother on … July 2018;
2)one count of aggravated burglary on … July 2018;
3)one count of threatening to kill the mother on … July 2018; and
4)one count of common law assault of the mother on … July 2018
(collectively, “the charges”).
At the appeal hearing, when asked whether he had pleaded guilty to the charges, the father conceded that he had done so, but submitted that the facts surrounding the events, which were to be taken into account during his sentencing hearing, were still in dispute.
The appeal hearing was adjourned for a short time at the request of the parties. At the resumption of the appeal hearing, the father consented to an order that the appeal be dismissed.
Counsel for the mother then applied for an order that her costs of the appeal in the amount of $14,061.52 be paid by the father. A schedule of costs on a scaled basis was provided by the mother at the appeal hearing.
The father opposed a costs order being made against him. The father then examined the mother’s Summary of Argument filed 24 May 2019 and submitted that Ground 3 (the ground that related to the July incident) comprised approximately one-third of the mother’s written argument. The father submitted that any costs awarded against him should, therefore, be limited to approximately one-third of the amount the mother sought.
Determining costs pursuant to section 117 of the Act
Sections 117(1) and (2) of the Family Law Act 1975 (Cth) (the “Act”) provide that parties are to bear their own costs, unless the court is of the opinion that there are circumstances that justify making another order as the court considers just.
Section 117(2A) of the Act sets out the factors that the court will take into account when making an order under s 117(2) of the Act. They include, relevantly:
(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 fact, production of documents and similar matters;
…
In considering the factors listed in s 117(2A) of the Act, no one factor can prevail over any of the others. The ultimate determination will depend on the weight given to each of the relevant factors at the court’s discretion.
Financial circumstances of the parties (s 117(2A)(a))
The father submitted that, save for the amount of $40,000 held on his behalf in a controlled fund, he has no assets of significance and due to his incarceration he currently earns no income. The father further submitted that he owes a substantial debt to his parents (“the second and third respondents”) of over $100,000 for his legal costs, although we have no evidence before us as to the nature of the debt or whether it was in any way secured.
Counsel for the mother did not make submissions regarding the mother’s financial position, however, the parties’ three children live with her on a fulltime basis and have done so at least since the father was incarcerated, without any financial support from him. The mother’s affidavit filed 18 June 2018 estimates that, at that time, the net property available for division was, in effect, worth no more than $260,000. She was, at that time, employed. There was no evidence put before us to suggest that the mother’s financial position has materially changed since the swearing of her affidavit filed 18 June 2018.
Whilst the evidence suggests that the father’s finances are quite limited and that he presently does not share the earning capacity of the mother, it has been well established in this Court that a lack of funds, in and of itself, does not preclude a costs order being made. For instance, in Nada & Nettle (Costs) (2014) FLC 93-612, the Full Court (May, Ainslie-Wallace and Austin JJ) held at [11]:
That a party is impecunious, even indigent, is not a bar to the making of a costs order if the Court is otherwise of the opinion that such an order ought to be made.
To determine whether such an order ought to be made in the present case, we now turn to s 117(2A)(c) of the Act.
Conduct of the parties (s 117(2A)(c))
Ground 3 of the father’s Notice of Appeal filed 13 December 2018 complained that the primary judge had erred by relying on “…contested allegations/facts that are currently before the Courts and under ongoing investigation by Victoria Police”. According to the father, these facts included, among other things, the “prejudicial nature of any disclosure that [the father] could make, in particular before a committal hearing has occurred”.
As has been previously outlined at [5] above, the father has consistently maintained that he could not lead evidence with respect to the events of … July 2018 because he was going to plead not guilty, and if he had to disclose any evidence, he might prejudice his defence to the criminal proceedings relating to those events.
In the father’s affidavit filed 13 November 2018, he deposed:
30.In relation to any evidence given by [the mother] about the alleged incident on … July 2018 I am not in a position to respond at this stage, other than to say that I deny the allegations. The criminal charges against me are based on the allegations of [the mother] which are currently untested. I intend to plead not guilty to the charges and the allegations will be tested in the appropriate [c]ourt in due course.
In the father’s affidavit in support of his application to stay the interim orders, which was filed 14 January 2019 and dismissed by the primary judge on 8 February 2019, he again stated that he “denied these allegations” and “intend[ed] to plead not guilty to these charges” (at [18]).
Most recently, at paragraph 25 of the father’s Amended Summary of Argument filed 28 May 2019, the father referred to the passage above from his affidavit filed 13 November 2018 as “[t]he reasons regarding [his] lack of response to these specific allegations”. According to the father, the primary judge erred in not taking into account that leading evidence at the interim hearing as it would have given the mother advanced notice of “arguments that may be used in [his] criminal defence” and would have “significantly damaged [his] prospects in the criminal matter” (Father’s Amended Summary of Argument filed 28 May 2019 at paragraphs 28 to 29).
It was submitted by counsel for the mother that the father had at all times known he was guilty of the charges and, had the father led evidence at the interim hearing admitting his guilt, it would have been a clear abuse of process for the father to then appeal from the orders made at the interim hearing on Ground 3. Whilst we cannot speculate as to what the father would have done had he led evidence of his guilt at the interim hearing, we agree with the mother’s submission.
The father’s conduct is directly inconsistent with his plea of guilty in the criminal proceedings and renders Ground 3 untenable. This ground should not have been brought or maintained. Further, the father’s criticism of the primary judge’s treatment of the evidence before her Honour is also without merit.
Accordingly, we are satisfied that a cost order ought to be made in these circumstances and that the father should pay the mother’s costs, particularly in relation to Ground 3. No determination has been made as to the merit of the other grounds.
Quantum of costs
Counsel for the mother was unable to provide the Court with an estimate of how much of the total costs set out in the schedule of costs pertain specifically to Ground 3. We make no criticism of counsel in relation to this difficult task.
Doing the best we can, we have considered the total sum of $14,061.52 and have taken into account the conduct of the father, especially in relation to Ground 3. Pursuant to r 19.18(1)(a) of the Family Law Rules 2004 (Cth), we find that the appropriate amount should be $5,000 to be paid by the father to the mother for her costs of this appeal.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren CJ, Aldridge & Austin JJ) delivered on 2 September 2019.
Associate:
Date: 2 September 2019
2
0
2