Meadows & Meadows
[2019] FamCAFC 1
•7 January 2019
FAMILY COURT OF AUSTRALIA
| MEADOWS & MEADOWS | [2019] FamCAFC 1 |
| FAMILY LAW – APPEAL – Appeal against the primary judge’s dismissal of the appellant’s interim parenting applications – Where the parenting orders subject to the appeal are not the operative parenting orders and where the appeal is nugatory - Where, even if this was not the case, the appeal had no merit – Appeal dismissed. FAMILY LAW – LEAVE TO APPEAL – Where the appellant seeks leave to appeal the primary judge’s order dismissing interim applications for spousal maintenance and injunctions and seeks leave to appeal orders to facilitate the mother’s participation in a psychiatric assessment – Where the primary judge’s decision is not attended by sufficient doubt to warrant it being reconsidered – Where the application for leave is dismissed – Where leave is also refused to challenge the order relating to the former Independent Children's Lawyer. FAMILY LAW – COSTS – Where the appellant is to pay the Independent Children's Lawyer’s costs which are to be deferred until a property settlement order is made. |
| Family Law Act 1975 (Cth) ss 68B, 74, 77, 80, 94AA, 114, 117 Family Law Regulations 1984 (Cth) reg 15A Family Law Rules 2004 (Cth) rr 15.41. 15.51 |
| Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Helbig & Rowe [2014] FamCAFC 179 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Redman & Redman (1987) FLC 91-805; [1987] FamCA 2 Sullivan & Tyler (No.2) [2013] FamCAFC 136 Tallant and Kelsey (2016) FLC 93-742; [2016] FamCAFC 207 |
| APPELLANT: | Ms Meadows |
| RESPONDENT: | Mr Meadows |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Shea |
| FILE NUMBER: | PAC | 3509 | of | 2013 |
| APPEAL NUMBER: | EAA | 113 | of | 2017 |
| DATE DELIVERED: | 7 January 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Watts & Austin JJ |
| HEARING DATE: | 17 August 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 October 2017 |
| LOWER COURT MNC: | [2017] FamCA 907 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Weate & Associates |
Orders made 21 December 2018
The appeal against Order 1, as far as it relates to the dismissal of the appellant’s application parenting orders, be dismissed.
The application for leave to appeal against the remainder of Order 1, Order 2 and Orders 4 – 8 (inclusive) be dismissed.
The appellant shall pay the Independent Children’s Lawyer’s costs of and incidental to the appeal and applications for leave to appeal in the fixed sum of $7,381 upon the making of a property settlement order in proceedings between the appellant and the respondent.
Reasons for these orders are reserved.
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 Meadows & Meadows 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 SYDNEY |
Appeal Number: EAA 113 of 2017
File Number: PAC 3509 of 2013
| Ms Meadows |
Appellant
And
| Mr Meadows |
Respondent
REASONS FOR JUDGMENT
Introduction
On 11 October 2017, Ms Meadow’s (“the appellant”) application for interim spousal maintenance, parenting orders, personal protection orders and property injunctions was dismissed (Order 1), and her application for the removal of the Independent Children's Lawyer (“ICL”) was adjourned (Order 2). Machinery orders were also made by the primary judge to facilitate the appellant obtaining a report from an expert as to her psychiatric/mental health (subject to her agreement and at the expense of the husband) (Orders 4 – 8), expediting the final hearing (Order 3) and appointing a single expert for the purposes of preparing a family report (Orders 9 – 11).
On 8 November 2017, the appellant filed a Notice of Appeal, including an application for leave to appeal where necessary, appealing against all orders except those expediting the final hearing and facilitating the family report (Orders 1, 2 and 4 – 8 inclusive). Mr Meadows (“the respondent”) resists the appeal.
This court made orders on 21 December 2018 which dismissed the appeal against Order 1 made 11 October 2017 as far as it related to the dismissal of the appellant’s application for parenting orders; dismissed applications for leave to appeal against the remainder of Order 1, Order 2 and Orders 4 – 8 (inclusive) and made an order for costs against the appellant in favour of the ICL. These are our reasons for making those orders.
Both parties are self-represented, and parenting and property proceedings have been on foot since 2013. The parties have one child born in 2011 (“the child”). The final competing applications for both parenting and financial issues are set down for determination to commence in January 2019.
Application before the primary judge
So as to understand the orders made and grounds of appeal, it is necessary to understand the appellant’s application.
The Application in a Case filed by the appellant on 7 September 2017 consolidated applications filed by her on 22 February 2017 and 5 May 2017. The applications sought orders in respect of the myriad of issues outlined above.
Central to the appellant’s interim parenting application was her assertion that the orders made by Judge Kemp on 10 January 2017, which moved the child’s primary residence to live with the respondent, should not have been made. Those orders should, on an interim basis, be reversed and a new set of interim parenting orders made, predicated on the child returning to live primarily with her. Furthermore, any previous order which invited her to undertake an independent psychiatric assessment or made a parenting order conditional upon her doing so should be discharged.
In relation to financial matters, the appellant sought orders, pursuant to s 77 of the Family Law Act 1975 (Cth) (“the Act”), for a lump sum spousal maintenance payment in the sum of $30,000, periodic spousal maintenance in the sum of $750 per week and a garnishee order on the respondent’s wages. Before us, the appellant accepted that the case before the primary judge developed into a defended application for interim spousal maintenance orders only.
The appellant also sought injunctions pursuant to ss 68B and 114(1) of the Act for a range of injunctions directed at controlling the respondent’s behaviour and removal of the ICL.
The respondent sought that the appellant’s application be dismissed, which, as already outlined, it was.
The appeal
The appellant’s Notice of Appeal filed 8 November 2017 contains six grounds of appeal. Given the appealed orders comprise a combination of those that require leave to appeal and those that do not, we propose in this judgment to proceed by reference to the orders rather than the pleaded grounds of appeal.
Order 1 (dismissal of applications under Part VII of the Act)
Leave to appeal is not required in respect to the dismissal of the interim application that sought parenting orders. Grounds 2 and 6 deal with this aspect of Order 1.
At the outset, we note that the appeal against the dismissal of the interim parenting applications is futile. Simply put, it is common ground that the orders that the primary judge failed to reverse are no longer the operative interim parenting orders. The current operative orders are not the orders made by Judge Kemp on 10 January 2017, but orders made by the primary judge on 14 November 2017 which suspended the earlier orders and provided that the child live with the respondent and spend time with the appellant supervised by a contact centre.
On 5 April 2018, the appellant filed an Application in a Case seeking to discharge the orders of 14 November 2017. That application has been heard and dismissed, and there was no appeal filed against that decision. On 22 June 2018, the appellant filed another application seeking to vary the orders of 14 November 2017. That application was considered on 16 August 2018 and adjourned to a date after the determination of this appeal.
Be that as it may, the appellant continued to press this aspect of her appeal. Against her, the ICL argued that doing so, in light of the circumstances, is an abuse of process. In response, the appellant argued that it is not an abuse of process because the orders of 14 November 2017 were made in the context of the dismissal by the primary judge (on 11 October 2017) of her earlier application to reverse the orders made by Judge Kemp on 10 January 2017.
We do not need to decide whether there was an abuse of process. Given that, as we noted earlier, all parties agree that the orders of 14 November 2017 are the current operative parenting orders, this aspect of the appeal is nugatory and futile, particularly in circumstances where the parenting proceedings are scheduled to be heard on a final basis commencing 14 January 2019. The appeal fails on this basis.
Notwithstanding, it is appropriate to make some short comments about the appellant’s substantive challenges to these orders, the gravamen of which are that she was denied natural justice, that the primary judge made errors of fact, overlooked relevant and new evidence and placed too little weight on the appellant’s evidence.
These complaints are misconceived, and centre on the provision, or otherwise, of expert psychiatric evidence about the appellant. The genesis of the issue of the appellant’s psychiatric health can be seen in Judge Kemp’s reasons for judgment, which was before the primary judge. That judgment referenced a family report provided by Dr C and his concerns about the appellant’s mental health. The primary judge recorded that Judge Kemp at [165] said, “[t]he court accepts that [Dr C]’s evidence will need to be the subject of testing and, indeed, [Dr C] would be assisted by the provision of an expert psychiatric assessment of the [appellant]”.
One of the orders Judge Kemp provided as follows:
The [appellant]’s overnight time with the child shall occur at the maternal grandparents’ home … with one or both of the maternal grandparents being present, pending a psychiatric assessment of the [appellant] being carried out as recommended by [Dr C], with the costs of such an assessment to be shared equally….
Following Judge Kemp’s orders, the appellant approached psychiatrist Dr EE, met with him for 15 minutes and gave him her history and her medical file. In turn, Dr EE had provided the appellant with a short report which the primary judge rejected as Dr EE was not one of the three psychiatrists who had been nominated by the ICL and was not an agreed single expert.
The appellant complained that the primary judge “disallowed the [appellants] [sic] to discuss in any depth the details of the evidence to be heard and the report of Psychiatrist Dr [EE], or to review the information” and referred to the restriction of her “civil rights” and being “treated as a disable person for one off scheduling”.
Rule 15.51(1) of the Family Law Rules 2004 (Cth) (“the Rules”), provides that, subject to Rule 15.41, a party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness. A single expert witness is defined in the dictionary to the Rules as meaning “an expert witness who is appointed by agreement between the parties or by the court to give evidence or prepare a report on an issue.”
It is clear from the exchange between the primary judge and the appellant that the primary judge was not prepared to give permission for the appellant to rely upon Dr EE’s report in circumstances where she had refused to engage with the ICL in the selection of the expert. Neither the respondent nor the ICL had been consulted or had agreed to the appointment of Dr EE and neither had been involved in providing instructions or information to Dr EE prior to the preparation of the report.
We are of the view that it was reasonable in the circumstances, and not a denial of natural justice or procedurally unfair, for the primary judge not to admit into evidence a report the appellant had obtained without reference to the respondent or the ICL.
The appellant further claimed that the primary judge did not adequately take into account information from her treating psychologist, Ms FF and information from two general practitioners. The letter from Ms FF was dated 2 December 2016 and marked Exhibit A. Ms FF assisted the appellant with relationship counselling and learning effective parenting and opined that the appellant is “[c]urrently … able to cope with parenting [the child] effectively”.
Annexure AD to the appellant’s affidavit of 5 May 2017 is an email from Ms FF (date unknown) which is in the following terms:
Dear [the appellant]
I am totally supportive of [the child] being in your care, I always was. However I understand you have refused my conditions and you are comfortable doing that.
Best wishes
[Ms FF]
We note that it is unclear as to what conditions are being referred to above, but observe that the appellant’s apparent refusal to comply with some therapeutic conditions imposed by Ms FF only vindicate the caution of independent assessment in the orders made by Judge Kemp.
As to the reports from the two general practitioners, they are dated January 2017 and May 2017 and simply state that the appellant attended their surgeries three and four times, and that the appellant did not show any psychotic symptoms, was rational, that no paranoid ideation, delusional thoughts or behaviour was evident, and that the appellant was appropriate with her parenting instincts and decision making.
The appellant suggests that the cumulative effect of the reports was that Dr C’s initial assessment and recommendation for her to undertake an expert psychiatric assessment should be discounted and, given that the orders of Judge Kemp were based upon that recommendation, those orders should be reversed.
We do not accept the appellant’s contention about the strength of the medical evidence she adduced. It carried negligible probative weight on the question of her psychological stability, the issue to which it was supposedly addressed. The evidence to which the appellant referred falls well short of the type of psychiatric assessment suggested by Dr C, Judge Kemp and the primary judge. The primary judge, at [4], correctly concludes that the appellant had not identified any evidence which set out “a qualified opinion as to the current state of her mental health”.
It has been the appellant’s consistent position that she will not participate in any independent psychiatric assessment. Nonetheless, as mentioned, the primary judge made machinery orders to facilitate this assessment, presumably in case the appellant changed her mind.
At [52] the primary judge commented:
Finally, as stated earlier, the [appellant] has informed the Court she will not participate as a willing participant in having her psychiatric/mental health assessed by a Court appointed expert. The Court urges the [appellant] to reconsider that position. If she asserts (as she has in Court) that there is nothing wrong with her mental health then it will assist her case greatly to be able to have acceptable evidence of that fact before the Court. The absence of such compelling evidence would leave the Court in a position which may make it not possible for the Court to make the orders sought by the [appellant] in relation to the care of [the child].
The orders made by the primary judge, and indeed by Judge Kemp, were made to provide her with an opportunity to put important evidence before the court. No error in their making has been established
The appellant also based her application to vary the interim parenting orders upon a number of concerns she had about the child in the respondent’s care, including:
a)Changes in the child’s transport arrangement to get to school;
b)Sunburn;
c)An injury to an eye;
d)Complaints in relation to telephone communication;
e)Complaints about the respondent’s partner; and
f)An allegation that the respondent attended the appellant’s residence.
The primary judge referred to these matters and took them into account, concluding at [23]: “Having considered the evidence and submissions relied upon and made by the parties I find the [appellant] has not satisfied the Court there should be any departure from the current interim orders at this time.”
The findings and the conclusion of the primary judge were open on the evidence. There is no merit in any ground raised in this aspect of the appeal which would have been dismissed even if not futile.
Order 1 (dismissal of miscellaneous applications other than under Part VII of the Act)
The miscellaneous applications contained in the appellant’s consolidated application comprised those for spousal maintenance, s 114 injunctions, property injunctions, other restrictive and mandatory injunctions and the psychiatric assessment of the respondent. The appellant requires leave to appeal the dismissal of these applications (s 94AA of the Act, see also reg 15A of the Family Law Regulations 1984 (Cth) (“the Regulations”)).
The relevant test for the grant of leave is whether the decision below is attended by sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692 at [57]).
Spousal maintenance
Proposed Grounds 1 and 5 relate to the appellant’s application for urgent lump sum and periodic spousal maintenance. The grounds alleged that the primary judge:
·Made errors in relation to the respondent’s financial circumstances;
·Made contradictory and inconsistent findings; and
·Failed to give adequate reasons why an urgent order could not be made under s 77 of the Act.
As indicated previously, the appellant accepted that the application proceeded as an interim spousal maintenance hearing (that is, under ss 74 and 80(1)(h) of the Act). This was appropriate given that both parties filed a financial statement and the court was in a position to determine what order for spousal maintenance should be made on an interim basis. The point being, the primary judge did not need to make an urgent order of a summary nature on limited material.
Turning then to the appellant’s other challenges. In dismissing the spousal maintenance applications the primary judge found that the respondent had no capacity to either meet a periodic spousal maintenance order or service a draw down on the redraw facility to enable a lump sum payment of $30,000. In doing so, he took the respondent’s evidence contained in his financial statement on its face. The appellant made no challenge to the figures provided by him in terms of his expenditure, but, as noted by his Honour at [25], asserted that the respondent misstated the income available to him:
[The appellant] asserted that the company operated by the [respondent] provided him with an income which was far greater than that represented by the income set out by the respondent as received by him from that source. No document evidence was provided to support her assertion and it was denied by the husband.
The appellant challenges this “no document evidence” finding; referencing Annexures G and H of her affidavit dated 22 February 2017, being letters dated 31 May 2015 and 11 July 2015 from Mr DD, an adversarial expert engaged by the appellant (“the adversarial expert”). In the first letter, the adversarial expert stated that he found it difficult to accurately determine the respondent’s income as he had inadequate information and critical information was missing. He opined that the respondent was in breach of the Income Tax Assessment Act 1997 (Cth), given that he had derived the majority of his income from a single entity, and that “the true assessable income of [the respondent] is in the range of $170,000 to $220,000 per annum”. However, in the second letter (less than two months later), the adversarial expert opined that the annual average revenue invoiced over the previous five years was $189,005.78.
There is a clear discrepancy between the figures in the May letter (assessable income) and the July letter (revenue). The appellant, during submissions, asserted that this was explained by the fact that the respondent had virtually no expenses in the operation of his business.
Given the untested and apparently inconsistent nature of the adversarial expert’s opinions, the primary judge was entitled to conclude that the appellant had not produced documents which supported the assertion and to rely upon the sworn evidence of the respondent in his financial statement.
At [44] of the reasons, the primary judge issued the following warning to the respondent:
In relation to the [respondent]’s ability to meet his expenses and the increase in the mortgage the [appellant] alleges that the [respondent] has been dishonest in the representation of the income available to him from his company “[L Pty Ltd]”. There is no way to test such assertions in the time available to hear an interim application, however, the [respondent], who is represented by solicitor and counsel will know that if he has misrepresented the true position of the company then should that be established at the final hearing then he is very likely to suffer the consequences of such a misrepresentation.
The appellant also applied to the primary judge for an order that the respondent repair her motor vehicle and that she be entitled to retain possession of that motor vehicle until a final property settlement order was made. It is common ground that the appellant’s motor vehicle was unserviceable and needed repair. The respondent had offered to fix the motor vehicle but only on the basis that he would then be able to sell the motor vehicle to recoup the money that he had drawn down on the redraw facility to do so. That offer did not assist the appellant’s plight in relation to transport. Again, the basis upon which the primary judge dismissed the appellant’s application for repair of the motor vehicle was the finding that the respondent lacked capacity to service an increased borrowing to pay for it.
The appellant asserted that the primary judge did not deal with her submission that the respondent could vacate his residence and rent it out, thereby, freeing up income to pay to her. At [29] the primary judge observed, “[the respondent] says the house is being used to house the child as well as he and his partner. Soon there will be an additional child to house and support...”. The appellant’s assertion is unsustainable. There was no evidence before the court that there would be a net gain to the respondent in his financial position if he relocated from the home and rented it out. Presumably, he would have to pay rent elsewhere and would still have the responsibility for the ongoing payment of the mortgage.
The appellant also asserted that the primary judge failed to provide adequate reasons as to why he concluded that the respondent lacked the capacity to pay spousal maintenance. In the context of this interim spousal maintenance hearing, and having regard to the “broad brush approach” that judges in the position of the primary judge would commonly take in interim spousal maintenance hearings (Redman & Redman (1987) FLC 91-805), the primary judge more than adequately explained why he had reached that conclusion (at [24] – [27], [29] and [30]).
As has been clear, the primary judge’s decision about spousal maintenance is not attended by sufficient doubt to warrant it being reconsidered. The appellant’s application for leave to appeal the order dismissing the spousal maintenance order is refused.
Injunctions
As set out above, the appellant applied for a number of personal protection orders for herself and the child and property injunctions. The primary judge dismissed those applications. The appellant seeks leave to appeal that order.
The appellant’s proposed Grounds 3 and 4 complained that the primary judge failed to apply appropriate principle, made findings which were in error or inconsistent with the evidence available, overlooked relevant matters and gave too little weight to the evidence that was provided.
Before us, the appellant conceded that the primary judge, at [33] – [39], discussed the evidence upon which the appellant relied in seeking personal protection orders. Thus, her complaint was confined to only that the primary judge had afforded too little weight to her evidence.
Obtaining appellant interference with the way a primary judge has weighed evidence is notoriously difficult (Gronow v Gronow (1979) 144 CLR 513 at 519 – 520). The appellant was unable to articulate the way in which she contended the primary judge’s discretion miscarried.
The appellant has not established that the primary judge’s dismissal of the appellant’s application for personal protection orders and property injunctions is attended by sufficient doubt to warrant it being reconsidered. In addition, no substantial injustice has been demonstrated.
The application for leave to appeal the primary judge’s dismissal of this part of the appellant’s application shall be dismissed.
Orders 4 – 8 (orders accommodating the wife’s voluntary submission to independent psychiatric evaluation).
These orders provide an opportunity for the appellant to participate in a psychiatric assessment for the purposes of the preparation of an expert report by that psychiatrist, subject to the appellant’s agreement. Although these orders were directed to the accumulation of evidence about the appellant’s parenting capacity, they are not, when read together, a “decree in relation to a child welfare matter” (reg 15A of the Regulations) and as such are not exempted from the ordinary need for leave to appeal interlocutory decrees (see Sullivan & Tyler (No.2) [2013] FamCAFC 136 at [85] – [87]; Helbig & Rowe [2014] FamCAFC 179 at [43] – [46]).
The grounds against these orders asserted that there was an error of principle which caused the appellant substantial injustice. The appellant’s grounds and submissions provided little assistance as to whether a grant of leave should be given, as they only very briefly and tangentially touched on these orders.
Dealing first with the possible error of principle. The appellant’s complaints can be distilled as being the denial of procedural fairness, errors of fact and either not taking into account her “new evidence” or attributing too little weight to it. As we understood the appellant’s submissions, they were each alternative ways of complaining about the primary judge’s focus upon the evidence which justified the now inoperative parenting orders made by Judge Kemp in January 2017 and the primary judge’s asserted relative disregard of the medical evidence she adduced in an effort to reverse those orders. We are not satisfied the primary judge erred in any of the ways the appellant contended.
We have already discussed the appellant’s arguments in relation to the available medical evidence under the rubric of the dismissal of her application for parenting orders and so, to answer her complaint about the procedural orders which enable her independent psychiatric assessment, it is only necessary to revisit the arguments in summary. The primary judge’s refusal to admit Dr EE’s report into evidence was not flawed. The primary judge did receive the evidence of Ms FF, Dr GG and Dr HH adduced by the appellant, but their evidence was incapable of carrying anything more than negligible weight. The appellant could not demonstrate how, even in aggregation, that evidence could have motivated the primary judge to reach a different conclusion.
Even if the appellant had been able to demonstrate an error of principle by the primary judge, her application for leave to appeal would still fail at the second hurdle because she could not demonstrate a substantial injustice by reason of the subject orders. Orders 4 – 8 are subject to the appellant’s agreement. They do not compel the appellant to do anything, and it is her prerogative to choose whether or not she submits to the assessment and thereby avail herself of the opportunity to procure evidence which she (presumably) would expect to corroborate her contention that she is psychologically stable.
Even though the primary judge recommended to the appellant that it would be to her advantage to be armed with “objective [medical] evidence from a qualified person”, the appellant asserted she would not voluntarily submit to this, as noted by the primary judge at [6] and [10]. The orders, therefore, only leave open the opportunity for the appellant if she changes her mind. No question arises of her injustice (let alone substantial injustice). If she maintains her refusal to participate in the independent assessment, the orders are not breached. If she changes her mind, the orders make allowance.
As an aside, the appellant seemed not to appreciate the irony of her objection to the orders which permit her independent psychiatric assessment, when one aspect of her interim application before the primary judge was for orders which would compel the respondent’s psychiatric assessment.
Leave to appeal Orders 4 – 8 will be refused.
Order 2 (adjournment of application to discharge the ICL)
The primary judge dealt with the appellant’s application for the removal of the previous ICL by making Order 2 which permitted the appellant to press her application for the discharge of the ICL once the matter was in a state to be listed for hearing. The primary judge (at [47]) noted that the appellant did not press for the discharge of the previous ICL in the hearing before him.
The appellant sought leave to appeal this order but did not press that application in circumstances where the previous ICL ceased to act on 23 November 2017.
An applicant for leave to appeal must establish that the subject order is a decree as defined by s 4(1) of the Act. In Tallant and Kelsey (2016) FLC 93-742 the Full Court per Ryan J (with Ainslie-Wallace and Cronin JJ agreeing) explained that a decree (or order) would need to determine an identifiable part of the proceedings for it to be an order to which a right of appeal (if necessary with leave) applies. Here the operative judicial act was no more than an adjournment as sought. The order determined nothing. Although argument was not made on the point, it is tolerably clear that Order 2 is not a relevant decree and this aspect of the appeal is incompetent.
Leave to appeal will be refused.
Costs
In the event that the appeal was dismissed the ICL sought an order for costs in the sum of $7,381.00.
Pursuant to s 117(4)(b) of the Act, the court must not make an order for costs in favour of an ICL if such an order would cause financial hardship.
The appellant resisted the application on the basis of her financial circumstances and that the ICL’s original position was to not be heard on the appeal. Self-evidently, that position changed. As to the appellant’s financial circumstances, she indicated that her estimate of her share of the net pool of assets, which will be altered by a property settlement order, to be in the vicinity of $400,000. The appellant said that even when she receives a property settlement, she has substantial debts in relation to legal fees, estimated in her updated financial statement of 7 September 2017 to be a debt to her parents in the amount of $100,000.
Counsel for the ICL submitted that if a cost order was made then enforcement of that order could be deferred until final property orders are made so that the appellant would not suffer financial hardship.
The appellant has been wholly unsuccessful in both her appeal and application for leave to appeal. We have found that the appellant’s appeal was in many respects without utility, a matter which was brought to her attention at a procedural hearing prior to the hearing of this appeal. It is just that a costs order be made in favour of the ICL in the amount sought. Such an order will not occasion financial hardship if enforcement is deferred as submitted by the ICL. Orders will be made accordingly.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Watts and Austin JJ) delivered on 7 January 2019.
Associate:
Date: 7 January 2019
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