O & L
[2005] FamCA 1233
•22 December 2005
[2005] FamCA 1233
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT SYDNEY FILE NO SYF 438 of 1999
| BETWEEN | O [Applicant mother] |
| AND | L [Respondent father] |
| Date of Hearing: | 15 September 2005 |
| Date of Judgment: | 22 December 2005 |
JUDGMENT OF THE HONOURABLE JUSTICE BOLAND
| APPEARANCES: | Mr Bell, of Counsel, instructed by Rita Thakur & Associates [of Unit 2, 107 Church Street Wollongong NSW 2520] appeared on behalf of the applicant mother. |
| Mr Cumming, agent, instructed by Kells [of DX 5162 Wollongong] appeared on behalf of the respondent father. |
INTRODUCTION
These proceedings have had an extended history before me. In November 2003 I heard an application by the mother to re-hear residence proceedings. Originally O’Ryan J had dealt with competing residence applications in May and June 2000 and determined that the two children of the marriage should live with the father and have contact with the mother. The mother’s application before me was conducted on the threshold issue of whether or not there had been a substantial or significant change to warrant the re-hearing of competing residence applications. I dismissed the mother’s application. Subsequently the father sought an order for costs in respect of the proceedings before me, and after submissions on 24 February 2004 I delivered ex tempore reasons about that application (“the costs judgment”). There was disagreement between the parties about the interpretation of my costs orders, and after further written submissions on 2 June 2005 I delivered written reasons relating to the costs judgment and orders (“the supplementary costs judgment”).
In October 2004 the father filed an Application in a Case seeking the issue of order for a costs assessment in the sum of approximately $19,000. At the time of hearing the father’s application, I was advised from the bar table that criminal charges had been brought against the father, and that the children of the marriage were subject of an order under the Children and Young Persons (Care and Protection) Act 1989 (NSW), but there was no admissible evidence of these matters before me.
In my supplementary costs judgment I said in paragraph 22:
“No formal application has been made to the Court for a stay of the costs order made on 24 February 2004. It is open to the mother to do so at any time and to support her application with evidence. Absent any formal application to relist this matter or the filing of an Application in a Case seeking a stay I do not find I can deal with the submissions made by Mr Bell on behalf of the mother absent any admissible evidence to support his submission”.
On 28 June 2005 the mother filed an Application in a Case. That application has, by consent, been adjourned on several occasions and was finally heard by me on 15 September 2005 when Mr Bell of counsel made submissions on behalf of the mother, and Mr Cumming as Agent for the father’s solicitors, made submissions on behalf of the husband.
The dispute in issue as identified by the parties is whether or not it is appropriate to stay my orders. Mr Bell seeks as his primary position that there should be a permanent stay of my costs orders. In the alternate, he seeks a stay (for a significant period of time) pending the mother filing an application for an extension of time to file an appeal against my costs orders of 24 February 2004 or that I grant a stay until an order made under the Children and Young Persons (Care and Protection) Act expires.
Mr Cumming’s position is that as the costs order has been perfected, that I am functus and the only application which the mother can make is for a stay pending an application for extension of time in which to appeal against my order. He says that it is inappropriate to make an order for a permanent stay.
Both parties agree that any application by the mother to extend time to appeal the orders of O’Ryan J and/or my orders of 4 November 2003 would be futile as an order has been made under the Children and Young Persons (Care and Protection) Act and having regard to the provision of s 69ZK of the Family Law Act 1975 (Cth) (“the Act”) the Full Court could not entertain such an application and appeal, or any orders made as a result of an appeal would not be effective until the expiration of the care order.
THE PRESENT APPLICATION
The present application before me is an Application in a Case filed by the mother on 28 June 2005. In her application the mother seeks the following orders:
“1.That the orders of Justice Boland of 24 February 2004 and 2 June 2005 be stayed.
2.That this matter be adjourned until after the completion of the proceedings in the Children’s Court of New South Wales at Port Kembla.
3. That the respondent pay the costs of and incidental to this application.”
The mother relies on her affidavit sworn on 23 June 2005 in support of her application.
During the hearing before me Mr Bell tendered a final orders made in the Children’s Court of New South Wales at Port Kembla dated 26 July 2005. Those orders are as follows:
“Pursuant to Section 79 (1)(i) of the Children and Young Persons (Care and Protection) Act 1998, allocating all aspects of parental responsibility for [the two children], the their (sic) mother…until each child attains the age of 18 years.
Pursuant to Section 76 of the Children and Young Persons (Care and Protection) Act 1998 providing the Director of the Department of Community Services with supervisory powers of [the two children], as defined in Section 77 of the Act, for a period of 12 months. to supervise the welfare of [the two children] and to support the placement with their mother.”
Mr Bell also tendered an undated Child and Family Care Plan for one child date of birth August 1996. The Care Plan notes that the two children, the parties’ other child were placed in the care of the maternal grandmother following their removal from the father on 14 September 2004 by the Department of Community Services (“DoCS”). The care plan noted that the children were then living with the maternal grandmother, but it was proposed that all aspects of parental responsibility was to be allocated to the mother. The report states “it has been assessed that there is not realistic possibility of [the two children] being restored to their father’s care”.
The care plan further notes “JIRT investigations confirmed sexual assault, and subsequently charged …(the father)”. These charges were withdrawn by the Department of Public Prosecution on 9 February 2005. An Interim AVO remains current, protecting the children from the father. Under the heading “Persons who did not participate in the development of the Case Plan” the following appears:
“Name: [the father] and JL
Reason: [the father] stated that he would not attend the meeting following legal advice. He expressed dissatisfaction with the decision in making process and stated that he would address any issues through the Court. He stated that he did not wish to contribute to the formulation of the Care Plan, and would respond to the Care Plan through his solicitor.”
The mother relies on her Affidavit sworn 23 June 2005. That affidavit sets out the lengthy history of litigation between the parties and purports to quote part of the judgment of O’Ryan J. The mother annexes to her Affidavit a medical report of a Dr T and she deposes to his reports, although not specifying the report annexed to her affidavit, having been filed in the Children’s Court.
The mother says on 17 September 2004 the children were removed from the father’s care by DoCS and placed with the maternal grandmother. She then deposes to the history of contact she thereafter had with the children. She says
“At present the Children’s Court proceedings are listed for a compliance check on 30 June 2005, and are listed as a special fixture for hearing before Magistrate Flood on 26, 27 and 28 July 2005. My solicitor has informed me and I duly believe that these proceedings will not conclude by 28 July 2005.”
On 7 October 2004 the father filed an Application in a Case seeking assessment of the costs due to him pursuant to my order of 24 February, 2004. That application should have been before a Registrar for an assessment on the papers pursuant to Chapter 19 of the Family Law Rules 2004 (“the Rules”). However the matter was eventually listed before me and on 2 June 2005 I made the following orders:
“1.That the father file and serve an amended assessment of costs in accordance with r 19.22 on or before 30 June 2005.
2.If the mother fails to file a Notice Disputing Costs within 28 days after service of an amended assessment the Registrar may make a costs assessment order pursuant to r 19.37.”
At the request of the parties a further order was made by me in chambers on 20 July 2005 as follows:
“1. This matter which is listed on 22 July 2005 for stay of an order be adjourned and re-listed before me on Thursday 19 August 2005 at 9.30 am”.
The matter was subsequently adjourned to a convenient date to the legal representatives and the Court and I heard submissions on 15 September 2005.
RELEVANT LAW
The issue to be determined by me is whether or not I am functus officio. If I am functus officio then the only practical order which I may make is an order for a stay of my order made 24 February 2004 pending an application to the Full Court for extension of time to appeal that order.
In [D] v [D] (unreported 20 December 2000) the Full Court Kay, Coleman and Penny JJ considered when a judicial officer is functus officio. Their Honours noted the dictionary definition as follows:
“18. The CCH Macquarie Concise Dictionary of Modern Law (Sydney: CCH, 1988) defines the term “functus officio” as follows:
“Functus Officio: having discharged his duty. The phrase is used of an agent or official who, having performed his function, has no further authority in a matter.”
Their Honours also referred to and quoted from The Australian Digest, Chapter Eleven, Part G – Estoppel, Division 3 – Intra Vires Estoppels as follows:
“The validity of a decision to revoke an earlier decision turns on the question of whether the decision-maker is functus officio once the decision is made. It does not turn on the applicability or otherwise of estoppel. (see Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 [92 ALR 93] (FC), Gummow J at 211). It is a question of statutory interpretation whether a particular power is only exercisable once and for all, or may be exercised from time to time. There is an ‘inconvenient common law doctrine ... that a power conferred by statute was exhausted by its first exercise’ (see Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 [92 ALR 93] (FC), Gummow J at 211, quoting from 27 Halsbury's Laws of England (1 ed, London: Butt), 131) which has been reversed in some jurisdictions where it is provided that a power conferred by statute may be exercised from time to time as the circumstances require unless the contrary intention appears. (see Acts Interpretation Act 1901 (Cth), s 33(1); Acts Interpretation Act 1954 (Qld), s 23). A number of cases have held that the exercise of a particular statutory power is final and irrevocable, particularly where the effect of the decision is to confer some right on a person. (see Re 56 Denton Rd Twickenham [1953] 1 Ch 51 [[1952] 2 All ER 799, [1952] 2 TLR 676], Vaisey J at 56-57; Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568 [37 ALJR 69], Windeyer J at 577; Export Development Grants Board v EMI (Australia) Ltd (1985) 9 FCR 269 [61 ALR 115], the Full Court at 276. See also the local government cases referred to in Re Isherwood [1991] 1 Qd R 13, Lee J at 19). If, as a matter of statutory interpretation, a decision is revocable the no-fettering principle applies and detrimental reliance on the original decision does not raise an estoppel preventing revocation. (see New South Wales Trotting Club Ltd v Glebe Municipal Council (1937) 37 SR (NSW) 288; Rootkin v Kent County Council [1981] 1 WLR 1186 [[1981] 2 All ER 227] (CA); Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 [92 ALR 93] (FC); Re Isherwood [1991] 1 Qd R 13. McDonald P, `Contradictory government action: estoppel of statutory authorities' (1979) 17 Osgoode Hall LJ 161 argues that the Canadian cases establish the contrary position, that detrimental reliance raises an estoppel which prevents a decision being revoked).”
There Honours went on to say:
“The only decision under the Family Law Act, in relation to the doctrine of functus officio to which we have been referred, is the decision of Kazimierczak & Koch (1987) FLC 91-849 in which it was argued that “...because the judgment [of the Court] had been perfected by being drawn up and signed by the Registrar.......the court was functus officio and that no new order could be made for costs thereafter in the proceedings.” (page 76,418). The Full Court held that (page 76,418):
“Whatever may be the rule in other courts, the question of costs in the Family Court is regulated by sec. 117 of the Act. Since the power to award costs is derived from the statute any limitation as to the exercise of that power must be found within the statute itself.
Proceedings for an order for costs fall within para. (f) of the definition of ‘matrimonial cause’ in sec. 4(1), that is to say, they must be proceedings ‘in relation to ... completed proceedings’. It may be that an application for costs is so remote in time from the original proceedings that it can no longer be described as relating to the proceedings which have been completed, but this is hardly the situation in the present case. It appears that the new r. 18 has been specifically inserted to impose a time limit to prevent applications for costs being made long after the conclusion of proceedings.”
DISCUSSION
In this matter the substantive proceedings were determined when the orders were made by me on 4 November 2003. The subsequent application for costs which was made on 26 November 2003 was determined on 24 February 2004, although I delivered additional reasons for judgment to clarify an aspect of the costs orders.
In the circumstances of this case the costs were determined very shortly after the substantive proceedings. The costs application was not remote in time to the substantive proceedings. The only matter remaining to be completed, if it has not already occurred, is the assessment process under Chapter 19 to certify the quantum of the costs. Orders to facilitate that process were made on 2 June 2005.
The costs application in this case being a matrimonial cause under s 4(1) (f) of the Family Law Act 1995 (Cth) (“the Act”) is not pending but was determined on 24 February 2004.
CONCLUSION – FUNCTUS OFFICIO
I am satisfied that, in the factual circumstances of this case, there were no pending proceedings before the Court when the costs order was made on 24 February 2004 and by that date both the substantive application for parenting orders and the costs application were determined. Whilst it may be argued the costs process is not complete as there has not been an assessment conducted by a Registrar, there is no evidence before me that the mother has filed a notice disputing costs within 28 days after service of the father’s assessment of costs. In these circumstances the assessment is unchallenged and the assessment process is irrelevant. As a consequence I am satisfied there are no proceedings before the Court, and I am functus officio. It follows that I cannot now set aside or vary the order made on 24 February 2004 and the only way the costs order can be challenged is by way of application for extension of time in which to appeal, and an appeal to the Full Court.
STAY PENDING APPLICATION TO THE FULL COURT
The mother seeks a stay of the orders of 24 February, 2004 pending a foreshadowed application for extension of time to appeal. She seeks such stay should be for “as long a period as possible”.
RELEVANT LAW – STAY
Rule 22.12 of the Family Law Rules 2004 provides as follows:
“(1)The filing of a Form 20 does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2)If an appeal has been started, or a party has applied for permission to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3) An application for a stay must be made to the Judge, Federal Magistrate or Magistrate who made the order under appeal.”
The law to be applied in considering an application for a stay pending appeal is well settled. The principles were enunciated by Dawson J in Commission of Taxation v The Commonwealth of Australia and the Meyer Emporium Limited (1986) 160 CLR at 220 where his Honour said:
“The discretion conferred by rule 12 to order the stay of proceedings is to be exercised only if special circumstances exist that justified departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of the appeal. Special circumstances justifying a stay will exist where it is necessary to prevent an appeal if successful being nugatory. Generally, that will occur when because of the respondent’s financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment. Special circumstances are not limited to that situation and they will exist where for whatever reason there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed”.
In Alexander v Cambridge Credit Corporation 10ACLR 42, Kirby P, as he then was, Hope and McHugh JJ. set out the principles governing stays and concluded referring to an earlier judgment of Mahoney J:
“Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of a judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court after grant of stay will consider each case upon its merits. But where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or mere argument, weight must be given to the fact that the judgment below has been in favour of the other party”.
Their Honours then go onto discuss, whether or not it is necessary for a grant of a stay that special or exceptional circumstances should be made out.
It is sufficient that the applicant for a stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his or her favour.
In Alexander their Honours go onto say there are other principles to be kept in mind. They note the onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties. The mere filing of an appeal will not of itself provide a reason, or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears.
The High Court has also considered the question of a stay pending an appeal (see Jennings Constructions v Burgundy Royale Investments (No.1) (1986) CLR 681.)
DISCUSSION
The material before me on which the mother seeks to rely comprises a deal of hearsay material and deals with events after the orders were made. The admissible material may be relevant on an appeal on the principles discussed by the High Court in CJD v VAJ (1998) 197 CLR 172, Allesch v Maunz (2000) FLC93-033.
I am unable to accurately assess the likely merit of any appeal by the mother as there are no draft grounds of appeal, nor is there any application for an extension of time to appeal my order, or even a draft of such application. It may be if a Full Court grants an extension of time and admits further evidence an appeal may have prospects of success. However that remains at the present time purely speculative.
The husband filed on 27 June 2005 an itemised costs account in accordance with the orders made by me on 2 June 2005. He seeks costs and expenses including counsel’s fees in the sum of $6,990.17. There is no evidence that the mother has filed a notice disputing this assessment so that the Registrar may, if he or she has not already done so, make a costs assessment order under r19.37 and interest will run on any unpaid costs.
It appears to me that absent a stay, which could only be made pursuant to the Court’s inherent powers to control its own processes absent a specific statutory power or provision in the rules made under s 38, the costs order can be entered and enforced against the mother. Interest under the rules will run on the costs order (r19.02). The question to be determined is whether this is a case in which the Court should exercise inherent jurisdiction to stay an order absent an appeal or an application for an extension of time to appeal. I am satisfied such a power should be exercised sparingly and only in an appropriate situation.
I find it is appropriate to consider the prejudice which may flow to either party absent a stay.
There is nothing to prevent the mother immediately filing an application to the Full Court for an extension of time in which to appeal my order. At that time the mother could renew an application for a stay which could be considered in the light of material in support of her application for an extension of time and in accordance with established principles. I accept this may appear a rigid or technical approach, having regard to the quantum of the amount in issue, however it is a serious matter, in the exercise of discretion, to invoke the inherent jurisdiction of the Court inappropriately.
What is the prejudice likely to be suffered by the husband? He has an unchallenged assessment of costs and has or is entitled to have a costs assessment order made under r19.37, and interest under the rules paid on the outstanding sum. If a stay is granted he will not, during the operation of the stay, be able to enforce the costs order which is restorative in nature. Further he is entitled to argue the stay application determined on the merits, remembering the onus of proof in respect of the stay remains with the mother. Balanced against that, it appears to me that the father will not suffer any prejudice if a stay is granted that cannot be remedied by an order for costs in the event the mother’s application for an extension of time in which to appeal the costs order is refused, and or if granted the appeal is ultimately unsuccessful. The evidence before me in the substantive proceedings indicated that the mother owned real property having a value of $320,000 subject to a mortgage of $80,000. I am satisfied she could met any order as to costs.
The litigation in this Court, which has been on foot since at least 2000 when parenting proceedings were heard by O’Ryan J, should be determined as soon as possible. In so finding I also have regard to the time before an extension of time to appeal can be heard, and if granted the hearing and determination of an appeal.
However, in accordance with establish principle, I am not satisfied this is an appropriate case where factors in the mother’s case, support the exercise of the Court’s inherent jurisdiction to grant a stay prior to any application for extension of time to appeal.
ORDERS
1.The mother’s application filed 28 June 2005 is dismissed.
I certify that the preceding 42 paragraphs are a true copy of the reason for judgment herein of the Honourable Justice Boland
Associate
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