Paul and Kylie (Costs)
[2010] FamCAFC 190
•23 September 2010
Family Court Of Australia
| PAUL & KYLIE (COSTS) | [2010] FamCAFC 190 |
| FAMILY LAW - COSTS – Application by the Father that the Mother pay the costs of the appeal proceedings – Where the Father’s appeal was successful – Where the Father was unrepresented and the Mother was funded by Legal Aid – Where the Mother is a pensioner – Where the Father conceded the Mother’s financial situation – Where the Mother’s financial circumstances were taken into account – s 117(2A)(a) – Application for costs dismissed |
| Brott and Joachim (2006) FLC 93-259 Latoudis v Casey (1990) 170 CLR 534 Penfold v Penfold (1980) 144 CLR 311 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | MR PAUL |
| RESPONDENT: | MS KYLIE |
| FILE NUMBER: | MLC | 1806 | of | 2009 |
| APPEAL NUMBER: | SA | 42 | of | 2009 |
| DATE DELIVERED: | 23 September 2010 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7 April 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 460 |
Representation
| THE APPELLANT: | Self-Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Ramsey |
| SOLICITOR FOR THE RESPONDENT: | Wightons Lawyers |
Orders
The application in an appeal filed by the Father on 20 July 2010 for costs of the proceedings determined on 23 June 2010 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Paul & Kylie (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA |
Appeal Number: SA 42 of 2009
File Number: MLC 1806 of 2009
| MR PAUL |
Appellant
And
| MS KYLIE |
Respondent
Reasons For Judgment
Introduction
On 23 June 2010 I pronounced judgment in relation to an appeal against orders made by Federal Magistrate Turner. I allowed the appeal and remitted the matter back to the Federal Magistrates Court for rehearing before a Federal Magistrate other than Federal Magistrate Turner.
The appellant in the appeal was Mr Paul (“the Father”). The respondent in the appeal was Ms Kylie (“the Mother”).
In reasons for judgment delivered on 23 June 2010 I said:
1. This is an appeal by [Mr Paul] (“the Father”) against orders made by Federal Magistrate Turner on 7 April 2009 summarily dismissing an application of the Father for parenting orders and granting an application by [Ms Kylie] (“the Mother”) for parenting orders. The Respondent to the appeal is the Mother. Both parties sought a variation of final parenting orders made on 9 July 2007.
2. The Mother lives in [G] and the Father lives in [L]. [L] is approximately one and a half hour drive north of [G]. Pursuant to the orders made on 9 July 2007 the changeover point for the child between the parents was initially at [K] and then as from October 2007 at [Business A], located at [C]. In consequence of the orders of 7 April 2009 the changeover point is now at [K].
3. The Mother proposes to change the residence of the child to [S] which is south of [G].
4. Counsel for the Mother contended before the Federal Magistrate that the “time frame” from [C] to [North G] is about 50 minutes and [S] is about 30 minutes from [North G]. I observe that the distance from [L] to [C] is about 30.5 km. The distance from [C] to [North G] is about 67 km. The distance from [North G] to [S] is about 43 km. [K] is approximately 78 km or 58 minutes driving distance from [L]; approximately 29 km or 27 minutes driving distance from [North G]; and approximately 72 km or 70 minutes driving distance from [S].
5. Before me, and also the Federal Magistrate, the Father appeared without legal representation. The Mother was represented by counsel.
6. On 19 May 2009 the Chief Justice made an order pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single judge.
In my reasons I also said:
131. I am going to allow the appeal. In my view, the Federal Magistrate made a number of errors. I am satisfied that the Federal Magistrate failed to comply with the guidelines in relation to unrepresented litigants. I am satisfied that the Federal Magistrate conducted the hearing in a manner that was not authorised by the Act or the Rules and this caused a significant procedural unfairness to the Father. I am also satisfied that the Federal Magistrate failed to properly consider the material in the submissions of the Father when he applied the approach suggested in Rice v Asplund. I am also of the view that the Federal Magistrate failed to provide adequate reasons.
132. I regret that it has taken some time before I gave judgment. The hearing was in August 2009 and through no fault of the parties a considerable time has since elapsed.
133. I propose to remit the matter for redetermination by a Federal Magistrate other than Federal Magistrate Turner. On behalf of the Mother it was urged upon me that I should re-exercise the discretion rather than remit the matter for redetermination. However, the difficulty with that approach is that I am of the view that there was significant procedural unfairness. Both parties should have the opportunity to file further evidence. Both parties should have the opportunity for any areas of controversy to be properly inquired into. The hearing should be conducted in a way that both parties have the opportunity to deal with all issues; where it is very clear what is happening and why and if necessary there is oral examination of the witnesses.
134. Given that I propose to remit the matter for redetermination, I do not have to deal with the application filed by the Father on 31 July 2009 and the response filed by the Mother on 14 August 2009. In any event, I observe that counsel for the Mother informed me during the hearing that the Mother would not proceed with her response if I determined to re-exercise the discretion. I observe that in the response of the Mother she raised issues that support why what happened before the Federal Magistrate was inadequate.
I made the following directions for the filing of any written submissions in relation to any costs incurred as a result of the appeal:
4. Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by the Appellant by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 28 days of the date hereof.
5. Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party.
6. Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further seven days.
7. Each party endorse on the cover sheet of any submissions filed pursuant to orders 4, 5 and 6 the date upon which a copy of that submission was served on the other party.
On 20 July 2010 the Father filed an application in an appeal seeking the following:
1. That the Respondent pay $700 towards the Applicants costs as part contribution to the Applicants lodging and service costs or pursuing an Appeal.
2. That the $700 is due and payable on the 1st January 2023.
3. That in the event that the $700 is not paid on or before the 1st January 2023 penalty interest calculated on the the [sic] rate currently in force as at the 1st January 2023 as Published in the Government Gazette shall be imediately [sic] payable and back dated to the date of these orders at that same rate.
4. The above orders shall be self activating without further application.
5. Mr Ramsay acting for the Applicant both in the original appearance before Turner FM and the Appeal is ordered to pay $500 to the Applicant as part reimbursement for disruption to the Applicants employment incurred in appealing the outcomes of Mr Ramsays exceptionaly [sic] ruthless disregard for the Rules governing the conduct of proceedings in the Federal Magistrates Court at first instance.
6. Turner FM is ordered to pay $500 to the Applicant as part reimbursement for disruption to the Applicants employment by having to Appeal his decision at first instance which was made in exceptional circumstances of negligent and or reckless disregard of the rules governing the conduct of hearings where one party is not represented by Counsel.
7. That in the event either Mr Ramsay or Turner FM contest the making of these orders leave is granted to sub poena [sic] Ms Susan Fridey instructing Solicitor acting for the Respondent to give evidence and produce records.
8. Such other orders as this honorable [sic] court deems fit.
On 20 July 2010 the Southern Appeal Registrar wrote by email to the Father in respect of his application. In the email it was stated:
The orders made 23 June 2010 provide for the parties to file written submissions in respect of costs. Such submissions would normally specify the amount of costs sought from the other party and provide reasons as to why a cost order should be made having regard to S117 of the Family Law Act or why the Court should issue a cost certificate pursuant to the provisions of the Federal Proceedings (Costs) Act. The legislation is available on the Family Court website – familylawcourts.gov.au.
Whilst you may apply for costs by filing an application in an appeal, that application must be supported by affidavit in which you should set out the facts in support of your application.
On 23 July 2010 the Mother filed a response to the Father’s application seeking that it be dismissed. The Mother swore an affidavit on 23 July 2010 in support her application and deposed:
1. That I am the Respondent Mother in these proceedings.
2. That I swear this Affidavit in Support of my Response filed simultaneously herewith.
3. That I entered into a relationship with the Applicant father in September 2004 and separated from the father in February 2005. We have lived separately and apart since that time.
4. That there is one child of the relationship [the child] born … 2005. Since separation I have been the primary carer of [the child] who is now aged 5 years.
5. That there have been a number of Applications made by the father over 5 years including Final Orders made on 9 July 2007 by FM Hughes.
6. That an application was filed by the father on 3 March 2009 seeking to change the Final orders made by FM Hughes.
7. That the application was heard by FM Turner on 7 April 2009 and was dismissed.
8. That the father then lodged an Appeal which was heard before Justice O’Ryan on 26 August 2009 and a decision handed down on 23 June 2010 which granted the applicant’s appeal application.
9. That at these applications I was represented by Solicitor Susan Fridey of Wightons Lawyers, 89 Myers Street Geelong 3220, who employed counsel on my behalf.
10. That at these applications I was granted Legal Aid and was also in receipt of a Pensioner Concession Card.
11. That at these applications the father self represented and is a qualified and registered legal practitioner.
12. That the father does not pay child support due to reduced income shown in annual tax returns and has not contributed to the financial needs of the child since January 2009.
13. That the father at this time has failed to file and serve an Affidavit in Support of the Application in an Appeal according to the Rules.
On 13 August 2010 the Father filed an affidavit and stated that the “delay in making this affidavit was due to influenza which severely disrupted by sole operator legal practice”. The Father also responded to the Mother’s affidavit of 23 July 2010 deposing that he agreed with paragraphs 1 to 9 of her affidavit; that he had “no knowledge” of paragraph 10; and “disputed” paragraph 11 as he “did no take part in the Child Support Agency review which found two years overpayments by the father”.
Legal Principles
Given that the Father was unrepresented I shall briefly refer to some relevant principles.
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides: “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
Section 117(2) of the Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub-ss (2A), (4) and (5), and the applicable rules, make such order as to costs, whether by way of interlocutory order or otherwise, as it considers just.
Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g).
As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
In Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
There are various relevant machinery provisions in Part 19 of the Family Law Rules 2004 (Cth) and without repeating the terms of the relevant rules I refer to r 19.01, r 19.02, r 19.08, r 19.11, r 19.18 and r 19.19 and Schedule 3 which provides an itemised scale of costs for work done.
Conclusion
No submissions were made by the Father in support of his application. The Regional Appeal Registrar drew the Father’s attention to the provisions of s 117 of the Act and thus the Father, who is a lawyer, would be aware of what he had to establish.
The Father was successful in the appeal and thus he established a justifying circumstance, namely that the Mother was wholly unsuccessful in the appeal proceedings. However, I accept what the Mother said about her financial circumstances and this appears to be conceded by the Father who only sought an amount of $700.00 and proposed that the Mother have 13 years to pay this amount. I also observe that the Mother was in receipt of a grant of legal aid.
I also observe that the Father never explained how the amount of $700.00 was made up.
In the result, I am going to dismiss the application of the Father insofar as he sought an order for costs against the Mother.
I am also going to dismiss the application of the Father insofar as he sought an order against the Federal Magistrate and also Mr Ramsey. The Father never adequately explained how such an order could be made and why.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan delivered on 23 September 2010.
Associate:
Date:23 September 2010
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