Miller and Harrington
[2009] FamCAFC 12
•3 February 2009
FAMILY COURT OF AUSTRALIA
| MILLER & HARRINGTON | [2009] FamCAFC 12 |
| FAMILY LAW - COSTS – Mother had appealed against the orders of a Family Court Judge – Appeal against the substantive orders dismissed – At hearing oral submissions were made in relation to the appeal against the indemnity costs order made by the trial Judge – Further submissions were sought on this costs issue – Father did not maintain the submission seeking costs assessed on an indemnity basis – Appeal against costs order succeeded – Re-exercise the discretion – Based upon the unchallenged findings of the trial Judge the mother ought pay the costs of the father – Consideration of each application involved in these proceedings – Mother ordered to pay the costs of the Application for Final Orders, father’s cross-application and, given the interlocutory nature of the other applications and their close link to the proceedings for substantive orders, the costs of the applications in a case filed by the mother. FAMILY LAW - COSTS – Appeal succeeded on a point of law – Certificates granted pursuant to the Federal Proceedings (Costs) Act 1981 to both parties for the appeal |
| Federal Proceedings (Costs) Act 1981 (Cth) |
| In the Marriage of Rice and Asplund (1979) FLC 90-725 |
| APPELLANT: | Ms Miller |
| RESPONDENT: | Mr Harrington |
| FILE NUMBER: | BRF | 6207 | of | 2000 |
| APPEAL NUMBER: | NA | 59 | of | 2007 |
| DATE DELIVERED: | 3 February 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick, Boland and Murphy JJ |
| HEARING DATE: | 7 March 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 July 2007 |
| LOWER COURT MNC: | [2007] FamCA 1124 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page SC |
| SOLICITOR FOR THE APPELLANT: | Rees Law |
| COUNSEL FOR THE RESPONDENT: | Mr Forrest |
| SOLICITOR FOR THE RESPONDENT: | Murdoch Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Galloway |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Morrison Property and Family Lawyers |
Orders
That the appeal against Order 3 of the Orders of Barry J made 31 July 2007 be allowed.
That the said Order 3 be set aside.
That the mother pay the father’s costs of and incidental to:
(i)The Application for Final Orders filed by the mother on 1 March 2006;
(ii)The Application in a Case filed by the mother on 1 March 2006;
(iii)The “cross application” included in paragraph 1 of the amended Response filed by the father on 6 February 2007;
(iv)The Application in a Case filed by the mother on 13 April 2007.
as agreed, and in default of agreement, as assessed save that the solicitors for the father are not to charge for Annexures 1 to 4 inclusive to the affidavit of the father filed 30 March 2006.
That the court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
That the court grants to each of the respondent father and the independent children’s lawyer a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Miller and Harrington is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA59 of 2007
File Number: BRF6207/2000
| Ms Miller |
Appellant
And
| Mr Harrington |
Respondent
REASONS FOR JUDGMENT
These reasons relate to an appeal by Ms Miller against an order made by Barry J on 31 July 2007 that she pay indemnity costs in respect of “…all proceedings since the order of Justice Buckley dated 8 July 2005 including [nominated applications] save that the solicitors for the father are not to charge for Annexures 1 to 4 inclusive to the affidavit of the father filed 30 March 2006”. At the same time, Barry J dismissed an application by Ms Miller seeking, by way of variation of the orders of Buckley J made in July 2005, an order that the two children of herself and Mr Harrington live with her rather than, as ordered by Buckley J, with the father.
On 15 October 2008, this Full Court dismissed an appeal by the mother in so far as it was against the order of Barry J dismissing the mother’s application for variation. His Honour had heard the mother’s application and a cross-application by the father for its dismissal “on the papers” and had applied the principle known as “the rule in Rice and Asplund”.
In reasons that we gave for dismissal of that part of the appeal, we concluded:
95.…, if the parties and Barry J assumed that the matter would be determined on the papers, taking the mother’s case at its highest, Barry J went well beyond that parameter.
96.If some other procedure was proposed, that was never made clear to or by the parties. In our view, it is not possible to say that the proceedings were conducted on a mutually understood basis and there is, as a result, merit in the submission that the mother was not accorded procedural fairness.
We then re-exercised the discretion that had been vested in the trial judge, and concluded:
115.We consider that the evidence … illustrates that there has been no material change in the circumstances of the children and the central issues affecting the children remain the same.
116.The matters said on behalf of the mother to be changes of circumstances are in fact, in our view, manifestations of the fact that the central matters found by Buckley J – including the antipathy of the children toward their father, the difficulties his Honour anticipated would exist for the children on a change in their residential care, the inability of the mother to promote or foster a relationship between the children and their father and the influence of the mother’s attitudes on the wishes of the children – continue to pertain.
117.In the circumstances of this case, including its litigation history, and, in particular, the opinion of Ms Lewis that “[the children] have been the subject of significant litigation over a number of years and clearly want litigation in relation to themselves to cease” we conclude, again adapting the language of Warnick J SPS and PLS, that it is more powerfully in the best interests of these two particular children, in their particular circumstances, to not allow the proceedings to continue.
Thus, though we had found merit in one argument for the mother, we dismissed the appeal insofar as it was against the substantive orders.
Although at the hearing of the appeal we had taken some submissions in relation to the appeal as against the costs order made by Barry J, we wished to give the opportunity to the parties to make further submissions, in the light of our reasons for the dismissal of the appeal against the substantive orders. We have now received those submissions, in writing.
At the hearing of the appeal we heard oral submissions including from the Independent Children’s Lawyer, as to costs of the appeal (his counsel sought a certificate under the Federal Proceedings (Costs) Act 1981 (Cth)) and the father and mother have made further submissions in writing as to those costs.
The costs appeal
Some potential issues in relation to the costs appeal have been avoided, in the following way.
In our reasons delivered 15 October 2008, we said:
119.His Honour, after referring to the relevant authorities, found four specific “exceptional circumstances” justifying the order for indemnity costs. The foundations of his Honour’s finding that this was an exceptional case are, in effect, the same findings as to conduct attacked in the Rice v Asplund aspect of this appeal.
120.The arguments attacking his Honour’s costs order essentially mirror those otherwise made in respect of the Rice v Asplund component of this appeal.
121.We have determined that it was not open to his Honour, in the proceedings before him, to make those findings.
122.It might be thought, then, that there remains little foundation for the finding as to indemnity costs. …
The bulk of the submissions on behalf of the mother attack the provision for costs to be assessed on an indemnity basis. However, in response the father does not seek to maintain that provision. We agree that the appeal should succeed, in view of our findings in relation to the errors of approach at first instance, which affected both the substantive order made and the making of the order for indemnity costs.
Mr Forrest, counsel for the father, refers to what he describes as the “most appropriate course” of remission by this Court of the father’s application for costs, so that findings as to matters of conduct (as to which Barry J inappropriately made findings) could be determined after a proper hearing. However, Mr Forrest nonetheless asks this Court to re-exercise the discretion, as best it can given the limitations that are present, because the father desires an end to the litigation.
We consider that there is much to commend that approach, but also that there is sufficient before us for the discretion to be properly re-exercised.
Re-exercise of discretion
Mr Forrest seeks an order for costs on a party/party basis of and incidental to:
(i)The Application for Final Orders filed by the mother on 1 March 2006;
(ii)The Application in a Case filed by the mother on 1 March 2006;
(iii)The “cross application” included in paragraph 1 of the amended Response filed by the father on 6 February 2007;
(iv)The Application in a Case filed by the mother on 13 April, 2007.
So far as the question of any order for costs “on whatever terms” Mr Page, senior counsel for the mother, in his written submissions said:
14.The appellant submits:
(a) that the failure to accept the offer of the father referred to by the trial judge was not an exceptional circumstance that the trial judge used to justify any order for costs against the appellant;
(b) that the failure to accept the offer if it is relevant was not imprudent in the light of the reports from experts who identified factors that the mother might rely upon to support a further application;
(c) that the failure of the appellant to overcome the threshold imposed by Rice v Asplund was not a factor which justified an order for costs on whatever terms in these circumstances.
15.If the Court is of the view that the dismissal of the wife’s application for final orders on a summary basis does justify an order for costs on whatever terms then it is the appellant’s submission that that order should be on a party and party basis and limited to the costs relating to the application for final orders filed on 1 March 2006 and the argument upon that application before Justice Barry on 13 April 2007 part of which related to submissions upon that application.
The findings of his Honour relevant to costs, which are not affected by our conclusions on the appeal, expressed in our reasons of 15 October 2008, include as follows:
Firstly,
56.For the above reasons I propose to summarily dismiss the Mother’s application filed 1 March 2006.
As already seen, we also concluded that the mother’s application for variation should be dismissed.
Then, subsequently:
63.In paragraph 6 of her first affidavit, Ms Mayes states:
“6.I have been advised and verily believe that [the Father] does not have the wherewithall to meet our costs and he has been provided with financial assistance from his family and friends to meet our costs.”
64.I have perused the financial statement of the Father sworn on 17 February 2007. That reveals he has a weekly income as a landscape gardener of $660. He has property of a total value of just over $10,000. He has no superannuation to speak of. His expenditure is limited to $162 per week. This does not include normal cost of living expenses as he is residing with his parents.
65.The amount he receives by way of child support for the care of the children is $6.94 per week from the Mother.
66.At annexure 2 to her affidavit Ms Mayes attaches an open letter dated 6 February 2007 containing an offer of settlement. I am satisfied from the terms of that letter that it is totally consistent with the orders that I am about to put in place.
…
69.Annexures 1, 2 and 3 to the affidavit are valuations of properties in which the Mother and/or her partner hold an interest. I propose to disregard the property at [O] registered solely in the name of the Mother’s partner. The estimates given for the property [in the F region] in which the Mother has a 50% interest is in the range $190,000 to $210,000. The [South East Queensland] property is estimated in the range of $175,000 to $190,000. The Mother in her financial statement estimates the [F region] property at being worth $200,000 and the [South East Queensland] property at $182,500.
70.She details the mortgage in total to be $73,000 on one property and $138,000 on the other property.
…
75.…
· The Mother instituting proceedings to re-litigate issues within eight months of a final hearing on the same issue.
…
77.The Mother’s father as I understand the position has been responsible for her costs to date. The Mother has two young children in her care and does not work. She resides with her partner. She discloses receipt of a family benefit of $112.50 per week. Her partner’s weekly income is $900 per week. The only expenditure she says she has is the sum of $6.94 by way of child support.
78.The Mother does have the 50% equity in the [South East Queensland] property. There is no evidence as to whether this property is rented or not. No details are provided in the Mother’s financial statement. It may be the property is rented but repayments on the mortgage are such that the property does not generate a profit.
We consider that on the basis of the unchallenged findings of the trial judge bearing upon the question of costs, the mother should pay the father’s costs, though whether of all the applications nominated by Mr Forrest requires consideration.
There is no doubt that the mother should pay the costs of the Application for Final Orders and the father’s cross-application, these being the proceedings which raised the substantive questions determined by Barry J and by us.
The mother’s Application in a Case filed by her at the same time as she initiated proceedings was for an urgent hearing, for discharge of the orders of 8 July 2005, (presumably on an interim basis) and the appointment of a children’s representative.
It seems to us that the application, being interlocutory in nature, is closely linked to the proceedings for substantive orders and the costs of it ought be borne in the same manner as the costs of the initiating proceedings.
The application filed by the mother on 13 April 2007 sought parenting orders, including in the alternative and for the same reasons as those set out in the immediately preceding paragraph, we consider the costs of that application ought be borne in the same manner as the costs of the initiating proceedings.
No challenge or submission was directed to the exception to the father’s costs entitlement that Barry J inserted, so we consider it should remain.
Costs of the appeal or certificates pursuant to the Federal Proceedings (Costs) Act 1981
Mr Page for the mother, seeks a certificate. Mr Forrest argues that the mother should pay the father’s costs of the appeal as, even though merit was found in argument for the mother, the Full Court’s ultimate decision was confirmatory of the soundness of the summary dismissal of the mother’s application for variation. Moreover, Mr Forrest submits that nothing was submitted on behalf of the mother at trial to deter the trial judge from acting in the way that the Full Court determined failed to afford procedural fairness. However in that regard we found that there was a rather generalised confusion about process, contributed to by both parties.
In our view, as the appeal succeeded on a point of law, all parties should have certificates in respect of the appeal.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 3 February 2009