Mursell & Rean (No. 3)
[2021] FamCAFC 56
•3 May 2021
FAMILY COURT OF AUSTRALIA
Mursell & Rean (No. 3) [2021] FamCAFC 56
Appeal from: Rean & Mursell [2020] FCCA 42 Appeal number(s): EAA 21 of 2020 File number(s): NCC 3878 of 2018 Judgment of: ALDRIDGE J Date of judgment: 3 May 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the applicant seeks his costs of a discontinued appeal – Where the applicant provided no description or memorandum of his legal costs – Impossible to determine reasonableness of that work and amount charged for it – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Where the respondent’s financial circumstances point in favour of no costs order being made – Application for costs dismissed. Legislation: Family Law Act 1975 (Cth) s 117(2A) Cases cited: Mursell & Rean [2020] FamCAFC 53
Mursell & Rean (No. 2) [2020] FamCAFC 155
Division: Appeal Division Number of paragraphs: 16 Date of hearing: Heard by way of written submissions Place: In Chambers Applicant: Self-represented litigant Solicitor for the Respondent: Adams & Partners Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
EAA 21 of 2020
NCC 3878 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR REAN
Applicant
AND: MS MURSELL
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
3 MAY 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 14 January 2021 be 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mursell & Rean (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
BACKGROUND
This is an application for the payment of costs of a discontinued appeal.
On 13 January 2020, a judge of the Federal Circuit Court of Australia made a suite of parenting orders in proceedings between Mr Rean (“the father”) and Ms Mursell (“the mother”) concerning their child, who was born in 2018 (“the child”). The mother was dissatisfied with the final parenting orders and sought to appeal.
On 11 March 2020, an order was made extending the time in which a Notice of Appeal could be filed until 4.00 pm on 24 March 2020 (Mursell & Rean [2020] FamCAFC 53). The father was a self-represented litigant in that appeal.
The Notice of Appeal was filed on 12 March 2020. The mother had difficulties in obtaining the transcript of the proceedings before the primary judge due to delays caused by COVID-19, and as such the appeal was deemed to be abandoned. The appeal was reinstated on 25 June 2020 (Mursell & Rean (No. 2) [2020] FamCAFC 155). Again, the father was a self-represented litigant.
The mother filed a Summary of Argument on 3 August 2020. The father filed a Summary of Argument prepared by him, on 9 December 2020. I note that a firm of solicitors, who had initially filed a Notice of Address for Service on behalf of the father, filed a Notice of Ceasing to Act on 4 December 2020.
The mother filed a Notice of Discontinuance of the appeal on 18 December 2020.
THE APPLICATION IN AN APPEAL
On 14 January 2021, the father filed an Application in an Appeal seeking the payment of $4,462.70 in legal costs, which he says he has incurred.
An immediate difficulty is that the father does not refer to the costs in his supporting affidavit other than to say that he seeks “reimbursement of costs incurred by me for this Appeal” (at paragraph 13). He did not annex the memorandum of fees from the lawyers or describe the work that his solicitors carried out for him.
As I have recorded, the father appeared for himself at the hearing of both the application for an extension of time, and the application for reinstatement. He signed and filed his Summary of Argument himself. Assuming for the moment however, that it was prepared by his solicitors, it is difficult to see how such brief submissions alone, comprising of just eight sentences, could justify the costs that are sought.
It is therefore impossible to identify the work that was done by the father’s solicitors, how it relates to the appeal and accordingly determine the reasonableness of that work and amount charged for it.
Ordinarily, in proceedings under the Family Law Act 1975 (Cth) (“the Act”), parties are to bear their own costs of proceedings but the Court may, in all of the circumstances, make such an order as to costs as it considers just. In considering whether to make an order as to costs the Court must take into account the matters raised by s 117(2A) of the Act.
The fact that the appeal was discontinued, and that matter required two applications to the Court to be able to prosecute it, point to an order for costs in favour of the father (pursuant to s 117(2A)(g) and (c) respectively).
The mother asserts she owns only a car and a caravan, in which she and the child have lived from time to time. The mother says she is unemployed and receives a single parent pension (s 117(2A)(a) of the Act). In a letter to the Appeals Registrar, the father says that some of this information is not true, but does not say which information that is, or state what he understands the correct position to be.
Doing the best I can on the limited material before the Court, it seems a safe inference from the above that, whatever the exact financial position of the mother may be, it cannot be described as good. She has the care of the child. The father’s financial circumstances are unknown.
I cannot be satisfied that the father’s deemed costs relate to the appeal or that they are reasonable. Additionally, whilst the other matters to be taken into account do point in different directions, I consider that the mother’s financial circumstances tip the balance in her favour.
It follows that the application for costs will be dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 3 May 2021
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