MILLSON & HALBERT
[2020] FamCAFC 54
•11 March 2020
FAMILY COURT OF AUSTRALIA
| MILLSON & HALBERT | [2020] FamCAFC 54 |
| FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS OF APPEALS – Where the mother has filed an appeal against final parenting orders made in the Family Court of Australia – Where the father seeks an order that the mother provide security for his costs of the appeal – Where the mother opposes the application and asserts she is impecunious – Where an order for security for costs would likely stifle the appeal – Where it cannot be said that the proposed appeal is devoid of merit – Application dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO ISSUE SUBPOENA – Where the father seeks leave to issue a subpoena to the New South Wales Police –– Application allowed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 19.05, 22.34 |
| Adult Guardian and Mother’s Parents and B and Child’s Representative (2002) FLC 93-116; [2002] FamCA 874 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Halsbury & Halsbury [2008] FamCAFC 170 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 JRS & KM (2005) FLC 93-223; [2005] FamCA 338 Sawer & Sawer [2007] FamCA 140 |
| APPLICANT: | Mr Millson |
| RESPONDENT: | Ms Halbert |
| FILE NUMBER: | SYC | 6260 | of | 2007 |
| APPEAL NUMBER: | EAA | 4 | of | 2020 |
| DATE DELIVERED: | 11 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 10 March 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 November 2019 |
| LOWER COURT MNC: | [2019] FamCA 869 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Blackah |
| SOLICITOR FOR THE APPLICANT: | G & D Lawyers |
| THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE ICL: | Mr Levy |
Orders
The Amended Application in an Appeal filed on 5 March 2020 seeking security for costs of the appeal is dismissed.
Leave be granted to the Appellant to issue a subpoena to NSW Police.
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 Millson & Halbert 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 SYDNEY |
Appeal Number: EAA 4 of 2020
File Number: SYC 6260 of 2007
| Mr Millson |
Applicant
and
| Ms Halbert |
Respondent
and
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 27 November 2019 a Judge of the Family Court of Australia made final parenting orders as between Mr Millson (“the father”) and Ms Halbert (“the mother”). By an Amended Notice of Appeal filed on 21 January 2020 the mother appeals his Honour’s orders.
BACKGROUND
His Honour’s orders, in short, provided for a change of primary residence for the parties’ two children from the mother to the father. His Honour further ordered that the children have no contact with the mother for a period of three months followed by a regime of supervised time.
APPLICATION FOR SECURITY FOR COSTS
On 5 March 2020 the father filed an Amended Application in an Appeal seeking an order that the mother lodge a fixed sum of $20,000 into the Sydney Registry of the Family Court of Australia to be held as security against any costs that may be awarded to him if the appeal filed by the mother is unsuccessful.
The application is opposed by the mother.
It is important to bear in mind in considering the issue of security for costs that the wife brings this appeal as of right and any order that would restrict that right requires careful scrutiny (JRS & KM (2005) FLC 93-223 at [22]).
The principles governing an application for security for costs were set out by the Full Court in Sawer & Sawer [2007] FamCA 140 as follows:
19. The power in this Court to make an order for security for costs is to be found in s 117(2) of the Act, which is in the following terms:
If, in proceedings under this Act, the court is of [the] opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
…
21. The authorities establish that in exercising the discretion to order security for costs, it may also be relevant for the Court to consider in addition to the financial circumstances of the parties and the other five specific matters mentioned in s 117(2A), the following matters:
a)the prospect of success of the litigation;
b)whether the claim for security is made bona fide;
c)whether or not an order for security would stifle the litigation;
d)whether or not the litigation may involve a matter of public importance;
e)whether or not there has been a delay in bringing the application for security;
f)whether there would be difficulty in enforcing an order for costs
(Luadaka v Luadaka (1998) FLC 92-830; Jones and Jones (2001) FLC 93-080; Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116.)
These factors are largely reflected in r 19.05(2) of the Family Law Rules 2004 (Cth) and relevant to this matter, r 19.05(2)(e) provides that the Court may have regard to “whether an order for security for costs would be oppressive or would stifle the case”.
Prospects of success
The Amended Notice of Appeal challenges the orders made by the primary judge by challenging the evidentiary findings on which those orders are based and further alleges that the primary judge made errors of fact in his determination.
The primary judge’s orders effected a significant change in the living arrangements of two children the older born in 2006, the younger born in 2011. Up until the date of those orders and from the date of the parties’ final separation which seems to have been before the birth of the younger child, the children had lived with their mother. The orders further vest the father with sole parental responsibility. The primary judge’s orders further require the mother to obtain psychiatric assistance for herself, and required the children and the parents to attend family therapy. In short the issues before the primary judge were complex and the appeal seeks to challenge orders which have had a serious effect on the parties and the children.
The father’s submissions challenge the prospects of success of the appeal and asserts that the prospects on appeal are poor. The submission further contends that the mother’s appeal merely challenges the adverse credit findings about her made by the primary judge, a position which I do not accept.
Nonetheless, it is necessary to consider the prospects of success of the appeal and whether the appeal is arguable. It is to be understood that this analysis is to be conducted on the material before the court without the benefit of written submissions from either party in relation to the asserted grounds. In Jackamarra v Krakouer (1998) 195 CLR 516 at 540, Kirby J said (albeit in the circumstances of an extension of time in which to appeal):
…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. However, this is basically because to grant it would be futile.
(Footnotes omitted)
Although the grounds are cast in general terms, I accept that they raise proper issues on appeal and I am satisfied that they are arguable.
Financial circumstances of the parties
The mother is in receipt of Centrelink benefits and it seems undisputed that she is impecunious. She has apparently no present capacity to meet any ordered security. According to the father’s submissions, the mother received an inheritance in 2010 although it is not suggested that she has retained any of that and further posited that she perhaps could have some financial assistance from her godmother. The mother filed no material in reply to that of the father and it would be unsafe to assume she has any financial resources. The mother appeared on the application and indicated that she opposed the making of the order, saying she could not meet the order sought. The mother was without representation and indicated that she was seeking Legal Aid which had not at that time been approved. Although she sought an adjournment, for reasons which follow, it is unnecessary for her to further consider the issue of security for costs further.
The father owns and runs his own professional firm in which he employs three employees two of whom are part time and one full time. He says in his affidavit filed on 13 February 2020 that his estimated taxable income in the financial year ending 2019 is $95,000.00. He has been the primary carer of the two children since 27 November 2019 and responsible for all their not inconsiderable expenses which include private school fees, monthly family therapy sessions and weekly speech therapy for one of the children.
Whilst the father owns his own property it is subject to a considerable mortgage and he has debts owing to his mother totalling $250,000.00.
To date the father’s legal expenses are approximately $108,000.00 whilst the mother has paid approximately $10,000 towards her costs which have been provided by Legal Aid or pro bono.
That the mother is impecunious does not prevent the making of an order for security for costs. In Adult Guardian and Mother’s Parents and B and Child’s Representative (2002) FLC 93-116, the Court said:
71. It is of course a matter of serious concern that an impecunious appellant may be prevented by the making of an order for the provision of security for the costs of the appeal, from pursuing his or her rights of appeal. However, that concern must be balanced against an equally serious concern for the position of a respondent to the appeal who, in the event that the appeal should fail, and because of the impecuniosity of the appellant, will be left to bear the burden of his or her own costs of successfully resisting the appeal.
I also bear in mind what was said by the Court in Halsbury & Halsbury [2008] FamCAFC 170:
34. Before concluding we take the opportunity to make the following observations regarding applications for security in relation to the costs of an appeal. Such applications appear increasingly to be taking up the time and resources of the litigants and of the Court. The proper place of such applications and the competing rights that lie at the heart of such applications need to be borne in mind by those seeking them.
35. Appeals are a part of our system of law. They operate as part of the proper checks and balances on the actions and decisions of trial judges. Litigants have a right to appeal in circumstances where they, properly and bona fide, allege error on the part of the trial judge (subject of course to the requirements in certain circumstances of leave to appeal being granted). That right to appeal is an important part of our system of law. It should not be fettered except for good reason.
Whether an order for security for costs will stifle the appeal
On the mother’s account she has no funds with which to meet any ordered security and, it is likely that if an order for security for costs is made it will stifle the appeal. It was submitted for the father that the appeal will most probably be stifled if an order for security for costs is made but argued that “hopeless” appeals should not be permitted to run. This is not a hopeless appeal in the sense that it is doomed to fail. I have found it to be arguable.
Although the father has relied on what is apparently a very protracted history of litigation over a number of years, it is also apparent that from time to time the parties have reached agreement as between them. While the agreements or some of them were short lived, I am unpersuaded that that history has a material bearing on the issue of security for costs.
As I have said, it is a serious matter to prevent a party with a right of appeal from bringing that appeal by making an order for security for costs.
I do not propose to make the order sought and the application for security for costs will be dismissed.
Application for leave to issue a subpoena
The father also sought leave be given to him to issue a subpoena to the New South Wales Police pursuant to Rule 22.34. The genesis of the application apparently lies in a conversation that the father had with a police officer from Z Police Station in which the police officer gave an opinion about the mother’s “state” and indicating that the officer will submit a report giving an opinion about the mother’s capacity to care for the children. Clearly the father does not know what information is contained in the police files and counsel for the father submitted that until the documents are produced and inspected it could not be said that the information may be admitted on the appeal.
There is no doubt that the Full Court has the power to admit further evidence on appeal. In CDJ v VAJ (1998) 197 CLR 172 at 201, McHugh, Gummow and Callinan JJ observed that the exercise of the power is remedial in nature, to give the Full Court discretion to receive further evidence where “…that evidence, if accepted, would demonstrate that the order under appeal is erroneous”.
Their Honours continued and said:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
115. Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.
(Emphasis added)
Taken at its face value then, the subpoena is to seek documents which may or may not at least reflect the opinion of a police officer about the mother’s present capacity to look after the children. It is evidence which is likely to be controversial and it is difficult to see how it could possibly be admissible in proof of the fact of the mother’s capacity. Counsel for the father conceded all of these matters but argued that at this point, he merely sought leave to issue the subpoena, what might follow from production of the documents will, perhaps, be the subject of another application.
I propose to grant leave to issue the subpoena.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 11 March 2020.
Associate:
Date: 11 March 2020
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