Meyer & Dara
[2021] FedCFamC1F 152
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Meyer & Dara [2021] FedCFamC1F 152
File number(s): SYC 1118 of 2016 Judgment of: MCCLELLAND DCJ Date of judgment: 29 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for Review of a Registrar’s decision to reject filing of costs submissions filed out of time – Where orders were made previously for costs submissions to be filed within a fixed date – Where the Applicant sought to file submissions out of time provided by the orders – Where the Application is not reasonably made in circumstances where the orders provided for 61 days to file submissions – Consideration of whether ‘justice could be done’ in granting the Application – Where allowing the Application would be contrary to the ‘overarching purpose’ of the Court – Where the Applicant deposes to the Respondent’s alleged contraventions as a reason for the costs Application –Application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67(2)(c), 100(1)
Family Law Act 1975 (Cth) Pt VII
Family Law Rules 2004 (Cth) rr 1.14, 18.08, 18.10, 19.08
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr, 12.13, 14.05, 14.07, 15.06, 18.08, 18.10
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Clivery & Conway [2007] FamCA 1435
Feiteiro & Feiteiro [2019] FamCA 647
Greetham & Greetham [2010] FamCA 246
Harrell & Nesland (No. 2) (2021) 62 Fam LR 230
Harris v Caladine [1991] 172 CLR 84
Jackamarra v Krakouer [1998] 195 CLR 516
1 Latoudis v Casey (1990) 170 CLR 534:
O’Connor v State of New South Wales & Anor [2017] NSWSC 598
Sanders (1993) FLC 92-426
Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 6 October 2021 Place: Sydney via webconference Solicitor for the Applicant: Meredith Hatton & Associates Counsel for the Applicant: John Lloyd SC The Respondent: Ms Dara in person ORDERS
SYC 1118 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MEYER
Applicant
AND: MS DARA
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Applicant’s Application in a Case filed on 9 June 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Meyer & Dara has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUSTICE MCCLELLAND:
INTRODUCTION
This matter concerns an Application in a Case filed on 9 June 2021 (‘the Review Application’) by the Applicant Father (‘the Father’) for Review of a Registrar’s decision, made on 21 May 2021, declining to accept the filing of an Application in a Case for costs in circumstances where the Application had not been filed in accordance within the time limit prescribed in the then applicable Family Law Rules 2004 (Cth).
By his Application in a Case filed on 9 June 2021 the Father has, in addition to several other proposed orders, sought an order that ‘the Applicant Father be given leave to institute proceedings for costs out of time.’
The Application for Costs is made in respect to parenting proceedings which have been heard and determined by Justice Hartnett by way of her Honour delivering judgement and making final orders on 11 December 2020 (‘the judgment of Hartnett J’).
In substance, the Father’s Application before me is for an order extending the time under r 15.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Harmonised Rules’) for him to file an Application for costs in respect to the proceedings which were the subject of the judgment of Hartnett J.
I have rejected the Father’s Application on the basis that the explanation that he has provided, through his lawyers, for the delay in applying for an extension of time is, in my view, unreasonable and, further, the Father has not satisfied me that it is in the interests of justice for the Father to be given such leave where the primary motivator of the Father’s Application for costs is his objection to the conduct engaged in by the Mother in the period subsequent to the judgment of Hartnett J.
BACKGROUND
The final hearing giving rise to the judgment and to which the Father’s Review Application relates took place before Hartnett J between 22 and 24 July 2020 and also on 2 September 2020. Subsequent to the hearing of the matter the parties also filed written submissions. The primary issue in the proceedings concerned the extent to which the child would spend time with the Father, who was a sperm donor, pursuant to what her Honour found was an agreement between the parties that the Father’s name would be on the birth certificate and that the Father would be involved in the child’s life.
The Father had not spent time with the child who was aged almost six years at the time of the trial from when the child was approximately eight months of age. Her Honour made it clear, in her decision, that she regarded the Mother’s conduct in failing to facilitate the child, who was a subject of the proceedings, having a relationship with the Father was unreasonable and, further, that she found certain aspects of the Mother’s evidence to be questionable. Comparatively, her Honour found the Father to be ‘a credible and impressive witness.’[1]
[1] See for instance the summary and conclusion of her Honour at paragraphs 201 through to 208 of her judgment.
The substance of her Honour’s decision was that the Mother was to have sole parental responsibility and the child was to continue to live with the Mother and spend an increasing graduated amount of time with the Father assisted by family therapy.
In seeking leave to proceed with an Application for costs the Father has placed significance on paragraph 208, the final paragraph of her Honour’s decision which, relevantly, is as follows:
The Independent Children’s Lawyer and the Applicant sought costs in this proceeding. Ordinarily each party shall pay their own costs. Costs are a discretionary matter for the Court. The Court is not inclined to make a costs order for one party against another but is open to hearing submissions as to this matter. The Court suggests the parties consider this aspect of the proceeding, and notify the Court as to their ongoing respective positions in due course.
(Emphasis added)
The Father’s Application is opposed by the Mother.
THE PARTIES’ RESPECTIVE APPLICATIONS
By his Application in a Case filed on 9 June 2021 the Father seeks the following orders;
1.That the decision of Registrar Turn [sic] made on 21 May 2021 be reviewed by Her Honour Justice Hartnett.
2.Pursuant to leave granted by Her Honour Justice Hartnett on 11 December 2020, as contained within Her Honour's Reasons for Decision dated 11 December 2020, paragraph 208, the Applicant Father be given leave to institute proceedings for costs out of time.
3.That the Respondent Mother pay the Applicant Father's costs of, and incidental to, the proceedings being matter number SYC 1118 of 2016.
By her Response to an Application in a Case filed on 27 September 2021 the Mother sought the following orders:
1. That the Court dismiss the application lodged by the Applicant.
2.That parenting case be referred to the High Court of Australia for a full review, as this case is unique, no similar precedence has been made and should be heard by the High Court. It is in the best interest of the public, IVF treatment recipients, gemmate donors recipients and for the Law Society and the application of ACT1975 Section 60H(d). [sic]
3.That the Court order a pro bono legal assistant/lawyer to help the Respondent with any High Court proceeding.
4. That the Court order the Applicant to pay the Respondent's legal costs to date.
5. That the Court appoint B Contact Centre to act as permanent agent for change over.
6.That if the Court makes Order 2, Court order a temporary cessation in access to child X by the Applicant until the High Court decision is made.
During the course of the hearing before me, the Mother was unable to satisfy the Court that there was a jurisdictional basis for the Court to make orders 2, 3 or 6 of her proposed orders and I do not, in this decision further address those matters.
In circumstances where the parenting proceedings, which were the subject of her Honour’s decision, were finalised by the publication of her Honour’s reasons for judgment and orders made on 11 December 2021, the Court is, in the absence of a further Initiating Application filed by the Mother, unable to consider and adjudicate upon the Mother’s proposed order 5.
Accordingly, the two relevant proposed orders sought by the Mother are orders 1 and 4. Despite the fact that the Mother has been successful in these proceedings, in that I have dismissed the Review Application filed by the Father, I have not made an order pursuant to the Mother’s proposed order 4 in circumstances where the Mother is self-represented.
CONSIDERATION
During the Course of the proceedings an issue arose as a result of the date stamped on the foot of the Application in as Case filed by the Applicant, seeking a review of the Decision of Registrar Turner dated 21 May 2021, being recorded as ‘Sealed at 24/06/2021 12:40 PM - ACT time’. Having regard to the Affidavit of the Father’s solicitor filed on 6 October 2021, the Court accepts that the imprinted date on the foot of the Application in a Case was incorrectly recorded and that the said Application in a Case was in fact filed on 9 June 2021.
Accordingly I am satisfied that the Father’s Application in a Case filed on 9 June 2021 was filed within 21 days of the Registrar’s decision made on 21 May 2021, which is the subject of the Review Application. This was within the time prescribed by r 18.08 of the then applicable Family Law Rules 2004 (Cth) (‘the Former Rules’).
Additionally, the Former Rules, by way of summary, relevantly provided as follows:
·Rule 1.14(1) allowed a party to apply to the Court to shorten or extend a time that is fixed under the Rules or by a procedural order.
·Rule 1.14(2) provided that a party may make an application under sub-r 1.14(1) for an order extending a time to be made even though the time fixed by a rule or an order has passed.
·Rule 18.08 of the Rules enabled a party to apply for a review of an order made by a Registrar.
·Rule 18.10 set out the power of the Court on review which is by way of a hearing de novo:
Power of court on review
(1) A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2) The court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing;
(b) any further affidavit or exhibit;
(c) the transcript (if any) of the first hearing; or
(d) if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
The review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at 71 [43]. Accordingly, in making my decision in this matter I am required to apply the law as in place as at the date that I make this decision (see Harris v Caladine [1991] 172 CLR 84, per Brennan J as he then was at [14]). The relevant rules of Court to apply are therefore the Harmonised Rules which came into force on 1 September 2021.
In that respect, s 100(1) of the Federal Circuit and Family Court of Australia Act 2021 (‘the FCFCOA Act’) provides for judicial supervision of orders made by Registrars under delegated authority by enabling a party to seek a review of a power exercised by a delegate of Division 1 of the Court, being a Registrar. The section relevantly provides:
100 Review of power exercised by delegate
(1) A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 1) under section 98 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
Rule 14.05 of the Harmonised Rules sets out when a party may apply for a review as follows:
14.05 Application for review of order or decision
(1) A party may apply for a review of an exercise of a power referred to in the table in clause 2 of Schedule 4 by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
(2) A party may apply for a review of any other exercise of a power under these Rules by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
…
Further, r 14.07 of the same rules provides:
14.07 Procedure for review
(1) A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2) The court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing; or
(b) any further affidavit or exhibit; or
(c) the transcript (if any) of the first hearing; or
(d) if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
…
In circumstances where, pursuant to r 14.07(1) of the Harmonised Rules, I am considering this matter as ‘an original hearing’ I am required to consider the Review Application as an application for extension of time made pursuant to r 15.06 of the Harmonised Rules which relevantly provides:
15.06 Shortening or extension of time
(1) The court may at any time, on the application of a party or the court’s own initiative, shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) A party may apply under subrule (1) for an order extending a time even though the time fixed by the rule or procedural order has passed.
(3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
As is apparent from the decision of the Registrar dated 21 May 2021, she regarded time in respect to an Application for costs as running from the date of the decision and for a period of 28 days. The Registrar’s decision, in that respect, was:
Reject for filing.
A party may make an application for costs by filing an Application in a Case within 28 days after the final order is made. (Rule 19.08(2)(b))
Note the final orders were made by Justice Hartnett on 11 December 2020 and that, therefore, the proposed application is out of time.
The equivalent to former r 19.08 is now r 12.13(3) of the Harmonised Rules which relevantly provides:
(3) An application for costs may be made:
(a) at any stage during a proceeding; or
(b) by filing an Application in a Proceeding within 28 days after the final order is made.
While it is not relevant to the decision that I make in this matter, because I am considering the matter afresh, it appears that, with respect, on the facts of this particular case, the Registrar was in error in referring to a 28 day time limit for an Application for costs extending from the date of her Honour’s reasons for judgment handed down on 11 December 2021. This is because the Orders (29), (30) and (31) made by her Honour were as follows:
29. The order made 26 October 2016 appointing the Independent Children’s Lawyer be discharged 90 days after the making of these orders with the parties notifying the Court of an intention to seek costs and the quantum of such costs on or before 10 February 2021.
30. Any continuing application for costs be adjourned for mention on a date to be fixed.
31. Otherwise, all extant applications are dismissed.
(emphasis added)
The better view, in my view, is that insofar as it was inconsistent with former r 19.08, Order (29) made by her Honour implicitly extended the 28 day time limit which otherwise would have applied pursuant to r 19.08 by an additional 33 days being until 10 February 2021.
In any event, it is clear, that the Father’s Application for Costs which was rejected for filing on 21 May 2021 was made after the later of those two dates. That is, the Application was filed after 10 February 2021 as required by Order (29) of her Honour’s orders and, accordingly, it is necessary for me to consider whether to make an order pursuant to r 15.06 of the Harmonised Rules extending the time for the Father to make such an Application for costs. For the purpose of this decision it has not been necessary to place any significance on the fact that the Application made by the Father on 21 May 2021 was by way of an Initiating Application rather than by way of an Application in a Case as required by former r 18.08.
PRINCIPLES FOR GRANTING AN EXTENSION OF TIME
In Clivery & Conway [2007] FamCA 1435 the Full Court (May, Thackray and O’Reilly JJ) set out the well-known principles in relation to extensions of time at [13] to [17]:
13.The principles in relation to extensions of time provided by Rules were discussed by McHugh J in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo v Dawson’). Although his Honour was there considering an application for leave to appeal out of time, it is accepted that the principles he discussed are relevant to all applications for leave to extend time limits provided by Rules.
14. The principles emerging from Gallo v Dawson may be summarised as follows:
•The grant of an extension of time is not automatic.
•The object is to ensure that Rules which fix times do not become instruments of injustice.
•Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
•When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
•When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
In Greetham & Greetham [2010] FamCA 246 at paragraphs 49 – 51, Strickland J also referred to Gallo v Dawson as well as In the marriage of McMahon (1976) FLC 90-038 and In the marriage of Tormsen (1993) FLC 93-392. His Honour stated:
50. The authorities mainly address extensions of time in the context of appeals. However, the principles are also largely applicable to applications for an extension of time to seek a review of the exercise of Registrar’s powers. In Tormsen (supra) the Full Court said at 80,017 that:
“[t]he fundamental issue in application for extension of periods of time prescribed by rules of court is whether this will enable the court to do justice between the parties …[and that a] failure to explain the delay adequately can certainly lead to a conclusion that justice demands that the application be dismissed.”
However, the Full Court did indicate that:
“…in appropriate cases the interests of justice may outweigh the absence of an adequate explanation.”
His Honour also referred with approval, to the considerations referred to by Purvis J in Sanders (1993) FLC 92-426, at 80,371 being:
(1)Firstly the Court is required to look at the explanation of delay;
(2)Secondly the Court is required to consider whether there are substantial issues to be tried in the event of the time being extended and the matter proceeding to a hearing;
(3)Thirdly, whether non-compensable hardship or prejudice would be suffered to the respondent by reason of leave being granted and the delay in the matter being finally heard and determined.
In considering those matters, the explanation provided by the Father for the delay in this matter is essentially that his solicitors understood the final paragraph of her Honour’s judgment as leaving open the question of costs to be dealt with at a subsequent time. On that basis, senior counsel for the Father stated, from the virtual bar table, that the Father’s solicitor was of the understanding that he was acting consistently with the orders of Justice Hartnett when the Father filed his Application in a Case for costs on 21 May 2021.
During the course of the proceedings before me I suggested to senior counsel for the Father that the Father’s solicitor’s interpretation of the orders of her Honour failed to have proper regard to the combination of Orders (29), (30) and (31). In reply it was contended that while, in Order (29), her Honour specified that the parties were to notify the Court of ‘an intention to seek costs and the quantum of such costs on or before 10 February 2021’ that the order did not apply to the Father because the Father had a subsisting Application for costs which remained live and on foot throughout the proceedings.
The difficulty with that argument, however, with respect, is that it ignores Order (31) which provided that:
‘Otherwise, all extant applications are dismissed.’
In other words, if the argument presented by senior counsel for the Father is correct then the Father’s Application for costs was dismissed by her Honour by operation of Order (31) in circumstances where the condition identified as giving effect to the operation of Order (31) had occurred. That is, there had been no indication from the parties by the date specified in Order (29) (being 10 February 2021) that they intended to press an Application for costs. At that point, if senior counsel for the Father is correct, then her Honour’s involvement in the proceedings was finalised and exhausted in respect to all applications including in respect to the issue of costs. This in itself would have been enough to dispose of these proceedings because as noted by the Full Court in Harrell & Nesland (No. 2) (2021) 62 Fam LR 230 ‘[a]s a general rule, once a judge has made an order, that judge is functus officio and cannot add to, amend or detract from it.’
In any event, for reasons which I set out below, I have determined that the Court should not extend the time to permit the Father to make an order for costs and, accordingly, it has not been necessary to determine whether Hartnett J was funtus officio in respect to that issue as at 10 February 2021.
In considering whether such an extension of time should be granted, consistent with paragraph 208 of her Honour’s decision, Hartnett J indicated her preparedness to consider an Application by the parties for costs arising from the proceedings on condition that the Court was notified of that party’s intention to press the issue of costs on or before 10 February 2021.
In those circumstances, I respectfully suggest it would be the understanding of any reasonable solicitor practising in the jurisdiction that, save being notified by the parties on or before 10 February 2021, of an intention to press the issue of costs, her Honour’s carriage of the matter was exercised and exhausted by delivery of her reasons for judgement and publication of her orders on 11 December 2020.
To the extent that the solicitor for the Father asserts that her Honour’s orders left open the issue of costs for an undefined period but which was of at least six months duration, that understanding was, with respect, one which was not reasonably open. Consequently, I find that the delay in the Father applying for costs more than three months out of time on 21 May 2021 to have been unreasonable. This was particularly in the circumstances where, in Order (29), her Honour had already granted the indulgence of extending the period of grace that the parties had to press any Application for costs from a period of 28 days to a period of 61 days.
As previously noted, however, that is not the end of the issue. Despite what I have found to be an unacceptable and inadequately explained delay, the Court is required to consider whether it is appropriate to grant an extension of time ‘to enable the Court to do justice between the parties’.
Assistance in considering that issue is provided in the decision of Adams J in O’Connor v State of New South Wales & Anor [2017] NSWSC 598 where his Honour observed at [66]:
The question of whether an extension of time should be granted is not to be confined either to the significance of the delay or the question of whether the plaintiff has a fairly arguable case. Each application turns on its particular facts. In some cases, an extension might be refused even though the delay is not significant on the basis that there is no fairly arguable case in any event. In other cases, an extension might be granted where there is significant delay but where the error is easily identified. The question of potential prejudice to a party caused by the delay is a significant consideration in all matters.
In considering where the balance lies it is to be noted that the applicant carries the persuasive onus of satisfying the Court that the relief should be granted. In Jackamarra v Krakouer [1998] 195 CLR 516 (‘Jackamarra v Krakouer’) Kirby J Brennan CJ and McHugh J said at [4]:
The party seeking indulgence bears the burden of persuading the decision‑maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused…
(emphasis added)
In this matter, declining the Father’s Application for an extension of time would deprive him of the opportunity of arguing that an order for costs should be made in his favour in respect to the proceedings heard by Hartnett J. As made clear in the final paragraph of her Honour’s judgment that was a question which her Honour was clearly prepared to consider but one which she had not determined.
I nonetheless accept that, in the event of an extension of time being granted, the Father has a ‘fairly arguable’ case for costs.
As against that is the prejudice that would be suffered by the Mother if such an extension was to be granted. The Mother was self-represented for the purpose of the proceedings before me but that does not mean that the Mother would not consider the prospect of engaging lawyers in the event that she is facing a claim by the Father for legal costs which, according to his Affidavit were a little under $200,000. Accordingly, the potential for the Mother to incur additional legal fees is a prejudice which I have considered.
Equally as significant, is the personal strain upon the Mother. As noted by Gummow and Hayne JJ in Jackamarra v Krakouer in a footnote to paragraph 35 of their decision:
Attention is usually directed to the costs incurred for representation but they are only one kind of cost incurred in litigation. Litigants suffer other costs - not least their time and the general burden of the litigation
Their Honours noted at [29], that each day’s delay in bringing proceedings to finality ‘simply prolongs the uncertainty and worry felt by the litigants’.
To similar effect, is the High Court decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 where the plurality noted at [100] “…justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants….”
In the exercise of my discretion, in dismissing the Father’s Application I have also had regard to the overarching purpose of the practice and procedure provisions of the Court as set out in s 67 of the FCFCOA Act which, relevantly, is as follows:
67 Overarching purpose of family law practice and procedure provisions
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
(emphasis added)
At the point in time that I am making this decision the practice and procedure provisions are the Harmonised Rules and the Central Practice Direction – Family Law Case Management which both commenced on 1 September 2021.
While it is but one factor that I have considered, acceding to the Father’s Application would delay the resolution of this matter contrary to the legislative direction that, to the greatest extent possible, matters should be resolved ‘as quickly, inexpensively and as efficiently as possible’ and specifically, ‘in a timely manner’.
Further, as noted by Gummow and Hayne JJ in Jackamarra v Krakouer at [29] ‘delay in a case also adds to the overall burden on the judicial system’ a factor that is relevant to s 67(2)(c) of the FCFCOA Act, being the consideration of the impact upon ‘the efficient disposal of the Court’s overall caseload’.
Finally, in the exercise of my discretion I have considerable disquiet at the motivation of the Father in applying for an order for costs. At paragraph 23 of his Affidavit, filed on 9 June 2021, the Father states:
It was my hope that, following the decision made in these proceedings, Ms Dara would accept and comply with the orders fully. Following the decision in December 2020 I was hesitant to make an application for costs notwithstanding the outcome of the proceedings. I wanted to give Ms Dara the opportunity to accept the orders and support X's relationship with me. However, since the orders were made, I have observed that Ms Dara is still willing to contravene the orders and I am not confident that Ms Dara will genuinely allow X the opportunity to have a relationship with me notwithstanding the orders. I have also taken on board the observations made by the Family Therapist Ms ZZ and Ms AB at B Contact Centre. For these reasons I am seeking leave to apply for costs out of time.
An order for costs is intended to be restorative and not punitive, as stated by Mason CJ in Latoudis v Casey (1990) 170 CLR 534:
If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.
(references omitted)
I appreciate that principle is generally applied in the context of the conduct of the litigation before the Court in which the issue of costs arises but it has equal force in respect to seeking costs with a view to sanctioning a litigant for conduct in which they have engaged, in the period subsequent to the conclusion of the litigation. In this case the Father unapologetically states that he seeks to pursue an order for costs in response to conduct of the Mother, in the period subsequent to the conclusion of the litigation, which he finds objectionable. A litigant is not entitled to keep the potential for an application for costs in their proverbial “back pocket” to be taken out and pursued, months after the litigation has concluded, as a tool to induce the other party to the litigation to comply with orders made in the proceedings. The remedy for non-compliance rests elsewhere (see Division 13A of Part VII of the Family Law Act 1975 (Cth)).
CONCLUSION
For all these reasons the Father has failed to discharge the persuasive burden which he carries of satisfying the Court that he should be granted an extension of time to make an Application for costs outside of the time permitted by Hartnett J in her orders made on 11 December 2020, being to 10 February 2021. Accordingly the Father’s Application in a Case filed on 9 June 2021 is dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 28 October 2021
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