Meyer & Dara

Case [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…

Continue reading Meyer & Dara

Sign in free to access the full text

Details
AGLC
Meyer & Dara [2021] FedCFamC1F 152
Case
[2021] FedCFamC1F 152
Decision Date

CaseChat Overview and Summary

The matter under consideration involves the father, who is a sperm donor, seeking a review of a decision made by Registrar Turner and an extension of time to apply for costs, which the mother opposes. The case was heard by Justice Hartnett, who found the mother's conduct unreasonable and certain aspects of her evidence questionable, whereas the father was deemed credible. Hartnett J's decision assigned sole parental responsibility to the mother, with the child spending increasing time with the father, supported by family therapy. The father's application for costs stems from his objection to the mother's conduct post-judgment.

The legal issues addressed by the court include the timeliness of the father's application for a review and an extension of time to apply for costs, considering the rules governing such applications and the appropriateness of granting leave in the circumstances. The court examined whether the father's explanation for the delay was reasonable and if granting leave for the costs application was in the interests of justice.

Justice Hartnett considered the father's application for review and an extension of time to apply for costs. The court found the father's explanation for the delay unreasonable and determined that granting leave was not in the interests of justice, primarily due to the father's objection to the mother's post-judgment conduct. The court held that the father's application was out of time, and while the mother was successful, no costs order was made against her given she was self-represented.

The court dismissed the father's application for review and denied him leave to apply for costs out of time. The court accepted the father's argument that the date on his application was incorrectly recorded but found his explanation for the delay unreasonable. Justice Hartnett concluded that the father had not demonstrated a compelling reason for the extension of time, leading to the rejection of the father's application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.