Metford and Faddin
[2019] FamCAFC 176
•11 October 2019
FAMILY COURT OF AUSTRALIA
| METFORD & FADDIN | [2019] FamCAFC 176 |
| FAMILY LAW – APPEAL – APPLICATION FOR EXTENSION OF TIME – Where the father seeks an extension of time to appeal from a costs order against him fixed in the sum of $6,000 – Where a sum of $4,682 for costs was fixed following an application brought about due to the father having retained the children on some five occasions contrary to orders – Where the father’s Notice of Appeal raises no substantial issue – Where the mother should not be prejudiced by being subjected to a meritless appeal – Application dismissed. |
| Family Law Act 1975 (Cth) ss 94AAA(5), 117 Family Law Rules 2004 (Cth) r 22.03 |
| Fleming & Schmidt [2017] FamCAFC 12 Metford & Faddin [2018] FCCA 278 Metford & Faddin (No. 4) [2018] FCCA 3960 Pendleton & Pendleton [2018] FamCAFC 203 Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 4 |
| APPLICANT: | Mr Metford |
| RESPONDENT: | Ms Faddin | ||||
| FILE NUMBER: | BRC | 9993 | of | 2017 | |
| APPEAL NUMBER: | NOA | 22 | of | 2019 |
| DATE DELIVERED: | 11 October 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 22 May 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3832 |
REPRESENTATION
| THE APPLICANT: | Self-represented via telephone |
| THE RESPONDENT: | Self-represented in person |
Orders
The Applicant be granted leave to rely on his Summaries of Argument filed on 2 May 2019 and 15 May 2019.
The Applicant’s Application in an Appeal filed on 15 March 2019 be dismissed.
There be no order as to costs.
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 Metford & Faddin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 22 of 2019
File Number: BRC 9993 of 2017
| Mr Metford |
Applicant
And
| Ms Faddin |
Respondent
REASONS FOR JUDGMENT
This is an application by Mr Metford (“the father”) to extend the time to appeal from a costs order made by a trial judge of the Federal Circuit Court of Australia (“the Federal Circuit Court”) on 30 November 2018. The order arises out of parenting proceedings[1] between the father and Ms Faddin (“the mother”) concerning their children.
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth).
The order required the father to pay the mother’s costs fixed in the sum of $6,000 on or before 31 January 2019. There has been no grant of a stay of that order.
Section 94AAA(5) of the Family Law Act 1975 (Cth) (“the Act”) and r 22.03 of the Family Law Rules 2004 (Cth) combine to prescribe a 28 day time period from the date of orders for the filing of a Notice of Appeal. Thus, that period expired on 28 December 2018. This application was not filed until 15 March 2019.
Principles to be applied
In Pendleton & Pendleton [2018] FamCAFC 203, I set out the following summary of the applicable principles by reference to the relevant authorities:
6.The power to extend time is provided in r 1.14 of the Rules. The principles governing the discretion to exercise that power are well established in many decisions of the Full Court. Some recent examples include Bant & Clayton [2014] FamCAFC 108; Chong & Chong [2016] FamCAFC 211; Manotis & Manotis (No 2) [2016] FamCAFC 232; Harrison & Ward [2017] FamCAFC 99; McMillan & McMillan [2017] FamCAFC 88 and Harrison & Ward [2018] FamCAFC 136.
7.Each of those decisions place emphasis upon the well-known judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480 (“Gallo v Dawson”) in which his Honour said of an equivalent rule of court:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties … This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine 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 the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal … It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted … It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice…
8.It can be seen that in Joshua v Joshua (1997) FLC 92-767 at 84,440 that Lindenmayer J emphasised, again with reference to McHugh J’s decision in Gallo v Dawson, the significance of the consideration as to whether the applicant establishes a substantial issue to be raised on appeal. There, his Honour observed:
…the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation…
9.The determinative question then, on this application, is whether an extension of time is necessary to enable the Court to do justice between the parties and to prevent injustice – in this connection the Court must weigh the prima facie entitlement of the respondent to retain the benefit of the judgment and the desirability of finality of litigation (see Tormsen and Tormsen (1993) FLC 92-392).
Is there a substantial issue to be raised on appeal?
The father requires leave to rely upon his Summaries of Argument filed on 2 and 15 May 2019 respectively given that, by directions made on 21 March 2019, the father’s submissions were due to be filed on 12 April 2019. In the absence of identifiable prejudice to the mother, the father should have that leave and I will make an order to that effect.
Following the parties’ separation in 2011, final parenting orders were made in the Federal Circuit Court in 2013. The effect of those orders was, in summary, that the mother had sole parental responsibility for the children and they lived primarily with her, spending time with the father from Wednesday to Friday in one week and Thursday to Sunday in the next week.
On 21 September 2017, the father filed an Initiating Application seeking parenting orders. The mother made an oral application for summary dismissal of the father’s application on the contention that there had been no sufficient change in circumstances. The trial judge heard that application on 13 November 2017 and delivered judgment dismissing it on 9 February 2018. In summary, the trial judge was satisfied there existed a sufficient change in circumstances to warrant the father’s application continuing (see Metford & Faddin [2018] FCCA 278).
At an interlocutory stage, on 17 July 2018, the trial judge heard the mother’s Application in a Case seeking a variation of orders consequent upon the father having failed to return the children to her on some five occasions. The trial judge heard that application on 17 July 2018 (delivering judgment on 18 July 2018) and ordered that the children begin spending time, as sought by the mother, in a five night block with the father. The trial judge also reserved the mother’s costs of those proceedings fixed in the amount of $4,682 and her Honour otherwise set the matter down for a final trial on 24 August 2018.
At [20] of the written reasons delivered on 18 July 2018 (which issued to the parties on 18 February 2019) the trial judge recorded:
20.I will reserve the costs, fixed in the sum of $4682, to the final hearing. I consider I need to understand and know the financial position of the parties, as well as all of the other factors set out in section s117 of the Act. I would ask the parties to put into their trial affidavits evidence in relation to costs so that I can make that determination.
On 25 October 2018, the trial judge delivered final parenting orders including an order for the mother to have sole parental responsibility, that the children live with the mother and spend time with the father from after school Friday to before school Wednesday each fortnight; and for half school holiday periods with changeover occurring at a shopping centre as sought by the father.
The parties were directed to file written submissions as to costs. On 30 November 2018, the trial judge delivered the reasons for the order the subject of this appeal requiring the father to pay the mother’s costs fixed in the amount of $6,000.
The father’s proposed grounds of appeal
The father’s proposed Notice of Appeal sets out the following five grounds of appeal:
1.Judge failed to consider the reason for initiating court proceedings was for the mothers continued breeches of orders SECT 117(2A)(d)
2.Capacity to pay was not adequately considered as per Family Law Act SECT 117(2A)(a)
3. Costs ordered are not based on costs schedule as stated in reasons
4.Fathers was not wholly unsuccessful in proceedings SECT 117(2A)(e)
5. Fathers costs were dismissed with no legitimate reason
(As per the original)
Before addressing these grounds, it is important to recognise that the determination of a costs order pursuant to s 117 of the Act involves a quintessentially discretionary judicial exercise. In a jurisdiction where costs do not follow the event, whether or not to make any costs order is one aspect of the discretion. If there are justifying circumstances for an order for costs to be made, an exquisitely discretionary matter is fixing the amount of costs to be ordered.
The nature of the discretion involved with respect to an order for costs under s 117 of the Act is reflected in numerous authorities to the effect that a Court of Appeal will be “usually most reluctant” to interfere with a decision on costs.[2]
[2] See, for example, Robinson and Higginbotham (1991) FLC 92-209.
In Fleming & Schmidt,[3] the Full Court referred to a number of authorities and held that where the appeal is directed to the quantum of the costs ordered, the Court must be satisfied that the costs order actually made was “plainly unjust” or that the discretion as to the amount ordered was “exercised on the wrong principles” such as to warrant appellate intervention and it is not enough to demonstrate only that a different or other order might have been made.
[3] [2017] FamCAFC 12.
The nature of the discretion is also reflected in the non-prescriptive terms of the relevant Federal Circuit Court rule identifying the kinds of orders that can be made and the various means by which the amount of costs may be set. Rule 21.02 of the Federal Circuit Rules 2001 (Cth) (“the FCC Rules”) provides as follows:
Order for costs
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c)refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of the costs, which may be before the proceeding is concluded.
As can be seen from sub-rule (2)(a) and (b), it is not mandatory that the amount of costs be fixed by reference to any scale or schedule.
By Ground 1 of his proposed appeal, the father contends that the trial judge failed to take into account the mother’s continued “breeches” (sic) of orders. However, as is clear from the trial judge’s various reasons for judgment, the father’s Initiating Application to vary the parenting orders was predicated upon alleged changes in circumstances. There is no evidence of the father bringing any proceedings for contravention of orders. In short, there is no sufficient evidentiary support to sustain this ground and it could not possibly succeed.
By Ground 2, the father contends that his capacity to pay was “not adequately considered”. However, as already noted, as [20] of the written reasons for judgment record, in her Honour’s reasons delivered on 18 July 2018, the trial judge specifically requested that both parties include evidence concerning their financial circumstances and the issue of costs in trial affidavits. In short, the parties had every opportunity to put before the Court any relevant evidence concerning costs, including as to their financial circumstances.
As is recorded at [9] of the reasons delivered on 30 November 2018, the trial judge had regard to conduct with respect to the father retaining the children on multiple occasions and the father’s financial presentation as follows:
9.That Application arose because the father failed to comply with the Orders of Coates J made in 2013. The mother, as I have indicated, was wholly successful. I note that the father has four real properties registered in his name, according to the Affidavit of [Ms T]. While they have mortgages registered over them, the father clearly owns real estate. The father also is [a tradesman] who earns income from his trade. I accept that the mother is also employed; however, in judging that matter, I am satisfied that I should make an order for costs that are costs according to scale fixed in the sum of $4682.
The trial judge was not bound to undertake any more detailed assessment of financial circumstances. This Ground cannot possibly succeed.
By Ground 3, the father contends that the costs ordered are not based on the costs schedule as stated in the reasons. With respect to the costs associated with the mother’s Application in a Case, brought about, it must be remembered, because the father had retained the children on some five occasions contrary to orders, the trial judge fixed the sum for costs at $4,682.
Subsequent to the trial, the trial judge added an amount of $1,318 by rounding up the total figure to $6,000 for costs incurred as a result of “the time taken up at the trial for the litigation in relation to sole parental responsibility” (reasons at [12]). The mother was wholly successful on that issue.
Rule 21.02 of the FCC Rules allows the Court to fix the amount in relation to costs and this is what her Honour can be seen to have done. Reference to the relevant schedule of costs applicable at the time confirms that Item 2 allows for the sum of $2,750 for initiating or opposing an application plus a daily hearing fee as per Item 13. Items 2 and 13 as operative at the time were as follows:
Item
Description
Amount for a family law proceeding (including GST)
…
2
Initiating or opposing an application which includes interim orders (other than procedural orders) up to the completion of the first court date
Both:
(a) $2,750; and
b) the daily hearing fee mentioned in Item 13 that applies to the hearing
…
13
Daily hearing fee
Either:
(a) for a short mention - $299; or
(b) for a half day hearing - $1,099; or
(c) for a full day hearing - $2,189
When reference is had to Item 13, there is no duplication or doubling up in the costs schedule that was relied upon by the mother’s solicitors at the time in support of the sum to be fixed, and the contention of the father to that effect has no substance. Given the reasons for judgment of the trial judge discussing the trial issues agitated by each party and the outcome, it cannot be concluded that by rounding up the sum to $6,000 (an additional $1,318) the costs order made is “plainly unjust” or that the trial judge has acted upon wrong principle.
Again, Ground 3 cannot succeed.
Ground 4 is the father’s contention to the effect that he was not wholly unsuccessful in the proceedings. However, the trial judge plainly had regard to the degrees of success on both sides of the record and set those matters out in some detail in the reasons for judgment. It bears repeating that the subject costs component of $4,682 related to the mother’s application prompted by the father’s multiple failures to return the children in accordance with operative orders. There is no substance in this Ground and it cannot succeed.
By Ground 5, the father contends that his application for costs was dismissed “with no legitimate reason”. However, in dismissing the father’s application for costs, the trial judge recorded in her reasons delivered on 30 November 2018:
14.I will dismiss the father’s costs application as the father was not legally represented. The father does not set out a foundation for the costs he alleges he has incurred. Furthermore, aside from the limited costs I have ordered, I do not see any reason to depart from the primary position, which is that each party should pay their own costs of, and incidental to the litigation.
The father being self-represented throughout the proceedings, did not incur legal fees and the trial judge was plainly cognisant of this plus the other features to which reference has already been made giving rise to the overall determination to order costs in favour of the mother.
There is no substance to this Ground.
Conclusion on merits
The father does not establish, on this application, sufficient merit in any of his proposed grounds of appeal such as to demonstrate that there is any substantial issue to be raised on appeal. It follows that it cannot be concluded that refusal of his application results in any injustice. The mother should not be prejudiced by being subjected to a meritless appeal.
The application must therefore be dismissed. It is, therefore, unnecessary to engage with the father’s explanation for delay surrounding the fact that written reasons for judgment were not published to the parties until 18 February 2019 and, as earlier noted, the father filed this application on 15 March 2019. All that may be observed is that this application is not dismissed on the basis that the father has not explained his delay. It is dismissed for the reasons stated, namely the failure to establish any substantial issue to be raised on appeal.
Costs
At the hearing, the mother indicated that in the event the application was dismissed, she made no application for costs.
The orders will, therefore, be as set out at the commencement of these reasons.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 11 October 2019.
Associate:
Date: 11 October 2019
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