PEROV & MCPHERSON

[2014] FamCAFC 176

FAMILY COURT OF AUSTRALIA

PEROV & MCPHERSON [2014] FamCAFC 176

FAMILY LAW – APPEAL – COSTS – Appeal of a costs order against a party’s solicitor – Where the solicitor appeals that order – Whether the appeal is so devoid of merit that it would be futile to make the order sought – Whether the appeal is “arguable”. 

FAMILY LAW – APPEAL – Application to extend time to appeal – Where the applicant is out of time – Whether the respondent would be prejudiced if leave were granted – Where the appellant will be prejudiced if he loses the ability to challenge the costs order – Where prejudice to the appellant is not such as to outweigh prejudice to the respondent –Where leave is not given.

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks an order for costs if the application fails – Where the application fails – Where the appellant is to pay the respondent’s costs.

Family Law Act 1975 (Cth): s 69ZK
Family Law Rules 2004 (Cth): r 22.03
Children and Young Persons (Care and Protection) Act 1998 (NSW): s 79
Commonwealth Powers (Family Law – Children) Act 1986 (NSW)

Gallo v Dawson (1990) 93 ALR 479
Re Felicity [2013] NSWCA 21

APPELLANT: Mr Perov

RESPONDENT: Mr McPherson

FILE NUMBER: SYC 1930 of 2013

APPEAL NUMBER: EA 113 of 2014

DATE DELIVERED: 15 September 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 9 September 2014

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 25 June 2014

LOWER COURT MNC: [2014] FCCA 1321

REPRESENTATION

THE APPELLANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Little via telephone

Orders

1. The application in an appeal filed 22 August 2014 seeking an extension of time in which to file an appeal is dismissed.

2. The applicant solicitor pay the respondent father’s costs of and incidental to the application, such costs to be agreed or assessed.

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

THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 113 of 2014
File Number: SYC 1930 of 2013

Mr Perov

Appellant

and

Mr McPherson

Respondent

REASONS FOR JUDGMENT

1. Mr Perov (“the solicitor”) by application in an appeal filed on

   
   

   22 August 2014, seeks leave to bring an appeal against an order for indemnity costs orders made against him personally by Judge Scarlett on 25 June 2014. 

Background

1. It is useful to give some background to the proceedings to give context to the application.

2. The principal proceedings were parenting proceedings between Ms Ward (“the mother”) and Mr McPherson (“the father”) in relation to their child, a little girl, who was born in 2007.  The solicitor acted for the mother.

3. In March 2009 officers from the NSW Department of Family and Community Services removed the child from her mother’s…