O’Kiefe and Ewing

[2013] FamCA 617

FAMILY COURT OF AUSTRALIA

O’KIEFE & EWING [2013] FamCA 617

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Application – Dismissal or Striking Out – Where the application for a stay is dismissed – INJUNCTIONS – Where an injunction is sought preventing the respondent from filing further applications – Where the application for such injunction is dismissed – COSTS – Security for costs – Where the respondent is on a Government pension – Conduct of the applicant – Where the application for security for costs is dismissed.

Family Law Act 1975 (Cth) s117(1), s117(2), s117(2A).

Central Authority & Wageman and Anor [2012] FamCAFC 176.
Halsbury & Halsbury (2008) FamCAFC 170.
Jago v District Court of New South Wales (1989) 168 CLR 23.
Luadaka & Luadaka (1998) FLC 92-830.

APPLICANT: Ms O’Kiefe

RESPONDENT: Mr Ewing

INDEPENDENT CHILDREN’S LAWYER: Bridges Family Law Specialists

FILE NUMBER: BRC 1440 of 2007

DATE DELIVERED: 23 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 9 August 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Rosen Lawyers
FOR THE RESPONDENT:	Mr Ewing in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bridges Family Law Specialists

Orders

1. That the Application in a Case filed 30 April 2013 is dismissed.

2. That in the event that the Independent Children’s Lawyer seeks an Order that the Applicant pays the costs of and incidental to the Application in a Case filed 30 April 2013:

   (a)the Independent Children’s Lawyer file and serve brief written submission in support of such Application for Costs within 14 days of the date hereof;

   (b)the Applicant file and serve any brief written submission in answer to any submission filed and served by the Independent Children’s Lawyer within a further 14 days thereafter;  and

   (c)the Independent Children’s Lawyer file and serve any brief further written submission strictly in reply to the submission served by the Applicant within seven (7) days of its service.

3. That the final hearing of the matter be set down for two days commencing at 10am on 15 October 2013 in the Brisbane Registry of the Family Court of Australia.

4. That the hearing fee be paid by 4pm 14 days prior to the commencement of the final hearing unless a reduction of the fee is obtained beforehand.

5. That by 4pm on 9 September 2013 each party file and serve on each other party any affidavit material intended to be relied upon at the final hearing of the matter.

6. That by 4pm on 23 September 2013 each party file and serve on each other party any affidavit material strictly in response to the affidavits of evidence in chief of the other parties.

7. That by 4pm on 30 September 2013 each party file and serve on each other party:

   (a)       a minute of the orders sought by that party;

   (b)a list of the applications and affidavits relied upon by the party particularising the date on which such applications and affidavits have been filed;  and

   (c)       a brief chronology of relevant events.

8. That by 4pm on 7 October 2013 each party file and serve a Summary of Argument containing the basis, having regard to the evidence before the Court, upon which it is intended to seek the orders particularised in the minute of order filed pursuant to Clause (7) above.

9. That in the event that any party fails to comply with the terms of this Order in so far as it provides for the filing and service of affidavit material to be relied upon by that party at the final hearing, then, subject to the discretion of the trial judge, the matter proceed for hearing on the basis that the party in default be limited to undertaking cross examination of other witnesses.

10. That in the event that any party fails to comply with the terms of this Order in so far as it provides for the filing and service of affidavit material to be relied upon by that party at the final hearing, then, subject to the discretion of the trial judge, the matter proceed by way of undefended hearing.

11. That in order to facilitate the expeditious hearing of the matter all necessary arrangements be made for the cross examination of Family Consultant Louise Salmon to occur by video link from the Sydney Registry of the Court.

12. That the matter be listed for further mention before the Honourable Justice Hogan at 9am on Wednesday, 9 October 2013 for the purpose of ensuring compliance with the terms of this Order and that the parties and the legal representatives have liberty to appear by telephone at this mention.

IT IS NOTED that publication of this judgment by this Court under the pseudonym O’Kiefe & Ewing has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1440  of 2007

Ms O’Kiefe

Applicant

And

Mr Ewing

Respondent

REASONS FOR JUDGMENT

1. By Application in a Case filed 30 April 2013 the Applicant seeks that “all or any” applications filed on behalf of the Respondent be permanently stayed and that an injunction be granted restraining him from filing any further application in relation to the children B born in 1998 and C born in 2001 (“the children”) without first obtaining leave of the Court.

2. In the alternative, the Applicant seeks that all current applications filed by or on behalf of the Respondent be stayed unless and until:

   a.he pay to her solicitors the sum of $2,977.35 in relation to the Order for costs made by the Honourable Justice Forrest on 19 November 2012; and/or

   b.he pays to the Child Support Registrar the sum of $29,003.71; and/or

   c.he pay to her solicitor’s Trust Account the sum of $33,000.00 by way of security for costs.

Should ‘all and any’ of the Respondent’s applications for parenting orders be permanently stayed?

1. As I understand the case advanced on behalf of the Applicant it is to the effect that the relief she seeks should be granted because of the Respondent’s failure to comply with various Orders made by the Court for the filing of material including an Amended Initiating Application setting out those orders he seeks on a final basis.

2. The Respondent opposes the making of such an order as does the Independent Children’s Lawyer.

3. The Respondent admits that he has not yet filed the necessary documentation but asserts, from the bar table, that he had forwarded the Amended Application to the Registry only to have it returned to him because he had omitted to sign it in the appropriate manner. I directed that he file his Amended Application prior to leaving the Court precinct.

4. The Respondent seeks that his Application for parenting orders be heard and determined by the Court in the usual manner. He seeks to be able to challenge, through cross examination, the recommendations of the author of the most recent Family Report.

5. Whilst it is undisputed that the children have not seen their father, the Respondent, since separation in 2004 and, against this background, the Respondent may well face a very difficult task in persuading a Court to make parenting orders in the terms that he seeks, such difficulty does not lead to a conclusion that the Respondent should be prevented from having the opportunity to attempt to persuade the Court to make orders he seeks.

6. Contrary to the submissions put forward on behalf of the Applicant, the fact that a party does not accept the recommendations put forward by the author of a Family Report does not provide a basis for the granting of a permanent injunction which has the effect of preventing the challenging party from accessing, in a proper manner, the Court’s processes.

7. In Central Authority & Wageman and Anor [2012] FamCAFC 176 the Full Court referred to Jago v District Court of New South Wales (1989) 168 CLR 23 where Gaudron J said, at page 76:

   The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J in Re Queensland Electricity Commission; ex parte Electrical Trades Union of Australia, that the “prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is ‘amenable to the jurisdiction’ of the courts and other public tribunals”. Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this court in refusing special leave to appeal in Attorney-General (NSW) v Watson, “sparingly, and with the utmost caution”. (Citations omitted)

8. I am not persuade that the circumstances of this case are exceptional or such that a power which should be exercised ‘sparingly and with the utmost caution’ should be exercised to prevent the Respondent from pursuing the relief that he seeks.

9. The Applicant’s solicitor accepted that, save for the Application for an order for security for costs, the balance of the Application amounted to an Application for enforcement of orders. It is clear that the Order of Justice Forrest contained no time within which the Respondent was to pay to the Applicant the costs ordered. The Applicant’s solicitor submitted that the time for the payment of costs had passed and that the preceding should be stayed pending such payment.

10. I discern nothing in the Applicant’s affidavit material, or the submissions filed on her behalf, which would support the making of an order in terms of those summarised in paragraphs 2(a) and 2(b) above.

Should there be an order for security for costs?

1. The Applicant seeks an Order requiring the Respondent to pay the sum of $33,000.00 into the Trust Account of her solicitors by way of security for costs of the trial.

2. The Respondent opposes the making of such an Order on the basis that he has no financial resources available to him to meet it. He further submits that if he had financial resources available to him he would expend those on engaging his own legal representation rather than contributing toward the cost of the Applicant’s representation at trial. The Respondent says that he is unemployed and supported by way of receipt of a Government funded pension. He says that if the Court were persuaded to make such an Order the effect would be that the proceedings, in which he seeks an Order for time and communication with the children, would, in effect, be stayed and that such a result is not in the best interests of the children.  I accept the submission that an order for security for costs would have the effect of staying the hearing of the proceedings.

3. The Independent Children’s Lawyer opposes the Court making an Order for security for costs which would have the effect of staying the proceedings. The Independent Children’s Lawyer submitted, and I accept, that the Applicant could have enforced the Order made by Forrest J that the Respondent pay the sum nominated towards her costs. Further submission was made that the history of the matter has involved Orders being made, in August 2008, which reserved the costs of the Respondent and the Independent Children’s Lawyer to the trial judge. It was submitted that, if the Respondent was successful in obtaining an Order for those reserved costs there might, in essence, be a set off in respect of the costs he was ordered by Justice Forrest to pay to the Applicant.   I accept that such possibility exists.

4. The Independent Children’s Lawyer noted that, over the history of the matter, which commenced in 2007, the Applicant has failed to appear on seven occasions which necessitated the issue of warrants and the making of location Orders. Further, it was submitted that, even when the mother provided an undertaking to the Court, she failed to appear which necessitated the issue of a warrant.

5. The Independent Children’s Lawyer submitted that, in an attempt to facilitate a final hearing of the matter in February 2011, an Order was made that the Applicant attend upon a psychiatrist for the preparation of a psychiatric report. Whilst the Applicant failed to appear, the Respondent attended upon the psychiatrist as directed.

6. It was submitted that the actions of the Applicant, as summarised briefly above, have resulted in the expenditure of significant public funds including those associated with the preparation of three Family Reports all of which had supported the introduction of the children to the Respondent and the provision to the children of an opportunity to develop a relationship with their father. It was noted that only the most recent Family Report fails to support such a proposition on the basis of an assessment that a successful reintroduction of the children to their father at this point in time enjoys slim prospects.

7. It is apparent that there has been significant delay in the matter proceeding to final hearing, and that the Applicant bears at least a significant part of the responsibility for this delay.

8. In Luadaka & Luadaka (1998) FLC 92-830 the Full Court set out the principles applicable to an application for security for costs: [1]

   [1] Luadaka & Luadaka (1998) FLC 92-830, [61] -[62].

   a.The general rule provided for in s 117(1) of the Act applies, namely that subject to s 117(2) each party to proceedings shall bear his or her own costs;[2]

   [2] Ibid at [61].

   b.If the court is satisfied that there are circumstances that would justify an order, then the court may, subject to section 117(2A) make such order for security for costs as the court considers just;

   c.Whilst it is unnecessary to establish that there are “special circumstances” in order to obtain an order for security for costs, it is necessary to establish that there are justifying circumstances;

   d.The decision to order security for costs is discretionary both as to whether to make such order and as to the amount to be secured;

   e.The purpose of an order for security for costs is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other;

   f.An order may be made in circumstances where the party seeking it has the means to pay his or her costs and it is not the case that an order will only be made in circumstances where the applicant the security does not have the means to meet his or her costs;

   g.Apart from those matters referred to in s 117(2A) of the Act those matters which may be relevant to a determination of whether or not to make an order for security for costs include:

   ii)the means of a respondent to an application for security for costs to satisfy an order for costs associated with the proceedings if unsuccessful in them;

   iii)the prospects of success although ordinarily the court will not undertake a details assessment of the likelihood of an applicant’s success unless it can be demonstrated that there is a “high probability” of success or failure;

   iv)whether the party from whom the payment of security for costs is sought has a bona fide claim which is genuine and not trivial, vexatious or a sham;

   v)whether or not an order for security for costs would be oppressive or stifle the litigation;

   vi)whether or not the litigation may involve a matter of public importance as this will militate against the making of an order for security for costs;

   vii)whether there has been delay in bringing the application for security for costs and whether any such delay has caused prejudice to the respondent to such application;

   viii)any difficulties associated in enforcing an order for costs; and

   ix)the amount of costs to be incurred.

9. I note that, despite proceedings being on foot for a significant period of time and despite the matter previously having been set down for final hearing in February 2011, it is only by Application filed in April 2013 that the Applicant seeks an order that the Respondent pay the sum sought into the trust account of her solicitor by way of security for her costs of the proceeding. I consider therefore, that there has been significant delay in the bringing of such application.

10. In light of the significant history, as outlined by the Independent Children’s Lawyer including the Applicant’s previous non-compliance with Orders designed to ensure the matter was heard in a timely fashion, I hold reservations about the bona fides of the Applicant in filing this Application at such a late stage in the proceedings.

11. Whilst said in the context of a consideration of an application for security for costs of an appeal, the Full Court in Halsbury & Halsbury (2008) FamCAFC 170 said, at paragraph 39, that applications for security for costs should not be regarded as a method of funding a respondent’s costs of legal representation in an appeal. Similarly, an application for security for costs should not be regarded by the Applicant as a means by which she funds her legal representation at the trial.

12. Having regard to the material relied upon by the Applicant and taking into account the submissions made on her behalf and those made by the Respondent and the Independent Children’s Lawyer, and noting the purpose of an order is to secure justice between the parties, the significant delay in filing the Application, the financial position of the Respondent and the effect on the determination of the proceedings of making an order for security for costs, I am not persuaded that the circumstances are such as to justify the making of an order requiring the Respondent to pay to the Applicant’s solicitor’s Trust Account the sum of $33,000.00 by way of security for costs.

13. For the reasons set out above I intend to make orders dismissing the Application filed 30 April 2013. I intend to order that if the Independent Children’s Lawyer seeks an Order that the Applicant pay the costs of and incidental to the Application, such Application proceed by way of written submission.

14. I am, however, well persuaded that it is imperative that the matter proceed to final hearing as soon as possible. As raised with the parties during the course of argument I consider that the most appropriate course is that I allocate trial dates for the final hearing of the matter and impose a timetable for the provision by the parties of the affidavit material upon which they intend to rely at trial.

15. In light of the history of the matter I am persuaded that the interests of justice and the best interests of the children require that I make orders which, without presuming to bind the judge entrusted with the hearing of this matter, will best ensure that it proceeds on the days allocated and I so order.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 August 2013.

Associate: 

Date:              23 August 2013