PETERS & ORTONA
[2016] FamCAFC 94
•10 June 2016
FAMILY COURT OF AUSTRALIA
| PETERS & ORTONA | [2016] FamCAFC 94 |
| FAMILY LAW – APPEAL – CHILDREN AND PROPERTY – Appeal dismissed – Order for the appellant to pay the respondent’s costs. FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Applicable principles – Eight applications dismissed. |
| Family Law Act 1975 (Cth) – s 93A(2), s 94AAA(7), s 98AB(1), s 117 |
| Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 CDJ v VAJ (1998) 197 CLR 172 Lenova & Lenova(Costs) [2011] FamCAFC 141 |
| APPELLANT: | Ms Peters |
| RESPONDENT: | Mr Ortona |
| FILE NUMBER: | MLC | 8590 | of | 2012 |
| APPEAL NUMBER: | SOA | 20 | of | 2015 |
| DATE DELIVERED: | 10 June 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thackray, Ryan & Austin JJ |
| HEARING DATE: | 10 May 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 February 2015 |
| LOWER COURT MNC: | [2015] FamCA 99 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The applications in an appeal be dismissed.
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Ortona has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 20 of 2015
File Number: MLC 8590 of 2012
| Ms Peters |
Appellant
And
| Mr Ortona |
Respondent
REASONS FOR JUDGMENT
Ms Peters (“the mother”) appeals against orders made by Thornton J on 26 February 2015. The appeal is opposed by Mr Ortona (“the father”). An Independent Children’s Lawyer was appointed at first instance but did not participate in the appeal.
The parenting orders provided for the parties’ children to live with the father and to spend time with the mother. The property orders provided for the division of the parties’ assets and superannuation worth about $680,000.
The appeal
The Notice of Appeal was filed in March 2015. At the hearing, the mother sought leave to rely on 10 grounds of appeal in an Amended Notice filed in April 2016. For reasons we gave at the time, the mother was allowed to rely on all of the grounds, save for Grounds 7, 8 and 9.
The appeal was conducted without the benefit of a trial transcript. The mother advised us that a transcript was unnecessary for the purposes of her appeal. There is a strong presumption in favour of the correctness of the decision appealed from: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621. The absence of a transcript could not be permitted to undermine the strength of the presumption and necessarily adds a layer of complexity for an appellant who attempts to challenge a discretionary judgment based on events that ostensibly occurred during the trial.
The applications to introduce further evidence
The mother filed seven applications to introduce further evidence in February 2016, and an eighth in April 2016. The applications related to both the parenting and the property issues.
Before addressing each of these applications, it is important to discuss the power to introduce further evidence on appeal, which is conferred on the Full Court by s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”).
The principal purpose of the power is to give the court discretion to admit further evidence which, if accepted, would demonstrate that the order under appeal is erroneous. The power can ensure the rectification of errors which could not otherwise be remedied by conventional appellate procedure.
In CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ said (footnote omitted):
104In the exercise of the discretion conferred by … s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion.
…
111… Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
Importantly, their Honours said this about failure to call the evidence at trial:
116The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
Later in their reasons, their Honours provided further guidance about how the discretion should be exercised when dealing with disputes concerning children:
148… The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
149In exercising the discretion to receive the further evidence in this case, the Full Court had to bear in mind the purpose to which that evidence was directed. That purpose was to provide the evidentiary ground for setting aside the order of the primary judge and ordering a new hearing of the husband’s application, it being common ground that, if the appeal should be allowed, the Full Court could not determine the matter. The Full Court also had to bear in mind that, in the context of a case such as this one, the relevant purpose of s 93A(2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband’s application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.
150In some exceptional cases — those concerned with allegations of physical or psychological abuse of a child are an example — it might arguably be a proper exercise of discretion for the Full Court to admit further evidence and order a new hearing even though it is not reasonably satisfied that the evidence would have produced, or at a new hearing would now produce, a different result. In such cases, it may be enough that the court thinks that there is a very real risk, although not a probability, that the current order may actually endanger the child. The consequences for the child may be so grave that arguably the best interests of the child might require the admission of the further evidence and a new hearing to investigate all the available evidence. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s 65E, to vary the order the subject of appeal. However, assuming such cases are an exception to the general rule, they are quite different from cases where there is merely a difference of opinion as to whether the child’s best interests require him or her to be in the care of one parent rather than the other.
151Wide as the discretion conferred by s 93A(2) undoubtedly is, apart from such truly exceptionable cases, more is required for its exercise and the ordering of a new hearing than a real chance that the order under appeal does not serve the best interests of the child. Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
These words of guidance point to the importance of maintaining an appropriate distinction between original and appellate jurisdiction, even in cases involving the best interests of children. While they also point to a more liberal approach in parenting cases, especially those where there is plausible evidence of the existence of issues of danger and grave risk, they also emphasise the importance of looking at the impact on children and families of exposure to all of the stresses and uncertainty associated with prolongation of litigation. This is a matter of real significance where the further evidence is controversial, since an appellate court is not equipped to resolve disputed issues of fact.
We turn now to consider the eight applications to introduce further evidence with this guidance from the High Court firmly in mind.
1) Documents of the father sworn in 2013
The first of the applications to adduce further evidence relates to documents sworn by the father in proceedings in the Federal Magistrates Court in 2013. The mother’s concern is that these documents were not made available to the family report writer and a psychiatrist who gave evidence at trial. The mother also asserted that the documents differed from those filed by the father later, and hence showed that he had “committed perjury”.
When we asked the mother why her counsel had not used the documents in cross-examination at trial, she explained that there was a last-minute change of counsel and that her new counsel was not given all of the papers. Whatever the reason for the documents not being used in cross-examination, we are not persuaded that the reports of the family report writer and the psychiatrist were affected as a result of being prepared without reference to these documents. More importantly, we were not persuaded that the decision of the trial judge would have been different had the documents been available at trial.
This evidence will therefore not be admitted.
2) Affidavit of Ms S
The mother sought to introduce as further evidence an affidavit sworn by her friend Ms S in August 2015, after judgment was delivered.
The affidavit primarily dealt with an incident at the parties’ home on 2 March 2012. Ms S deposed to having received a late-night telephone call from the mother, who told her about what had occurred during the incident. Ms S said that she then attended at the home where she observed the mother with “swelling to her face” and the children crying. She also claimed that the mother had not been drinking. Her affidavit went on to describe other events said to have occurred in the aftermath of this incident.
Given that this incident was part of the mother’s case that the relationship was characterised by violence, no satisfactory explanation was proffered as to why an affidavit had not been obtained from Ms S for use at trial. At the hearing before us, the mother claimed that Ms S was in Israel at the time of trial, but this still does not explain why an affidavit was not obtained.
The trial judge had available to her a report concerning attendance by police at the parties’ home on 2 March 2012. This recorded that the mother
was moderately affected by alcohol. Both parties have begun to argue this point, no violence or threats of violence made by either party. Both parties have then contacted police. Police attended and [the father] has agreed to leave the house for the night and stay with family. Both children were asleep and did not witness the incident. Police have nil safety concerns…
The mother was cross-examined about the striking discrepancy between her version of events and what was recorded by the attending police officers. The trial judge did not accept the mother’s evidence and found that the discrepancy “illustrates the mother’s penchant for exaggeration”.
The evidence of Ms S, if introduced, would clearly be controversial, given it too is inconsistent with the police report. This fact alone, quite apart from the absence of an explanation for the affidavit being filed for use at trial, persuades us that we should not allow Ms S’ evidence to be received.
3) Affidavit of Ms J
Part of the mother’s case at trial was that she, either individually or jointly with the father, owed $272,000 to a close friend of the mother, Ms J. The trial judge recorded that:
340.The wife claimed that she had borrowed the sum of $272,000 from her friend, Ms [J] during the parties’ relationship. This figure was unclear during the trial and in the wife’s affidavit material was also referred to as a loan for $90,000. The wife’s case was that the loan remained outstanding and should be included as a liability of the parties.
341.The husband’s evidence was that he was not aware of any loan from Ms [J] and he argued that there was no evidence of such a loan.
342.On 12 June 2014, I ordered that the wife file and serve the affidavits in chief of all witnesses relied upon by 23 July 2014. The wife did not file an affidavit sworn by Ms [J]. Ms [J] neither sought to be joined as a party to these proceedings nor attended Court.
343.On 18 August 2014, the sixth day of trial, counsel for the wife foreshadowed that he might seek leave to file an affidavit sworn by Ms [J], but ultimately made no formal application.
In support of her application to introduce an affidavit by Ms J into evidence on appeal, the mother asserted that an affidavit from Ms J had been provided to her counsel during the trial, but that she only realised it had not been filed after judgment was delivered.
The mother did not produce a copy of the affidavit said to have been provided to her counsel, but assuming such a document was provided, we can only infer that counsel made a considered forensic decision not to rely upon it. In any event, her Honour found:
346.The wife’s evidence during cross-examination about the loan was that she had borrowed $90,000 from Ms [J] without interest, from August 2002 until the birth of [B], which was a period of about 12 months. She stated that when she could not return to work after the birth of the two children, she renegotiated the loan with Ms [J] and it was to be paid on 23 August 2012. She could not produce any evidence about the loan but insisted that the husband had been present when it was discussed. She stated that there were bank statements to support this but no bank statements were adduced in evidence. The wife also claimed that the husband was present for some discussions with Ms [J] about the loan but did not provide any particulars. Her evidence was lacking in detail and vague.
The affidavit of Ms J was signed only on the first and last page, and was witnessed by a police officer (it being noted that police officers are not authorised witnesses under s 98AB(1) of the Act). None of the pages of the affidavit containing the evidence was signed either by Ms J or by the police officer. There is accordingly no way we can be satisfied that Ms J deposed to the truth of the unsigned material. As we note later in relation to other affidavits, the affidavit uses the somewhat arcane word “privy”, which the mother acknowledged in her submissions before us was a word that she often used in other documents of which she was the author.
Putting to one side our concerns about its provenance, the purported affidavit of Ms J deposes to the “fact” that she advanced $90,000 to the mother and father in 2002 so they “could travel Australia and settle into cohabitation”. It also purports to explain why she did not seek any security for the repayment of the loan until after the mother and father separated.
Although the mother was unable to produce at trial any documentary evidence about the loan, Ms J’s affidavit now has attached to it what purport to be three iterations of an unstamped loan agreement, the last of which indicates that the original loan of $90,000 was to be repaid in an amount of $272,000 including interest on 23 August 2014 (not 23 August 2012 as the mother apparently said in evidence – see [346] of the reasons). No explanation was provided as to why copies of these documents were not attached to the mother’s trial affidavit, which contained a large quantity of other documents. Nor was any explanation forthcoming about why the mother apparently did not refer to the written agreements during her oral evidence. Similarly, no reason has been advanced why the bank statements referred to were not provided.
Ms J’s affidavit also has attached to it various other documents which fall well short of proving the existence of the loan. While the affidavit has attached to it one cheque butt purporting to record a cheque of $2,500 payable to the father, and another on the same day for $2,300 payable to a business, no cheque butts, or any other form of documentary evidence, were provided for 13 other large amounts which were said, in the first purported loan agreement, to be a “term deposit” and “post dated cheques”.
Ms J’s affidavit also had attached to it what purport to be two emails between the mother and the father, by which the father allegedly gave authority to the mother to sign papers on his behalf relating to the loan. Again, there is no explanation why these documents were not produced at trial.
As a member of the bench suggested to the mother at the hearing in relation to other material she sought to adduce, the irregular method of signing the affidavits and the content of the affidavits provide a firm basis for the father to assert that the material constitutes a concoction. At the very least, the evidence is controversial and we are unable to determine its veracity. We therefore do not propose to allow the evidence to be adduced in this appeal.
4) Affidavit of the mother sworn 25 February 2015
The mother now seeks to rely upon an affidavit she swore on 25 February 2015, which she believes was not taken into account by the trial judge, and which she believes “may of [sic] affected the outcome of the final orders”.
The trial proceeded over many days in August 2014, and further days were then allocated on 30 December 2014 and 10 February 2015. Although we have not been provided with a transcript, it is clear that her Honour reserved her decision following the final hearing on 10 February 2015, before delivering judgment on 26 February 2015. Accordingly, the affidavit with which we are concerned was sworn on the day prior to delivery of judgment, after the close of the evidence.
The mother’s affidavit of 25 February 2015 contains assertions designed to establish that statements made by the father during the trial were incorrect. It also contains assertions of what the mother claimed in the affidavit was a “significant change of circumstances, whereby [the father] has deliberately excluded me from being involved in the children’s education and daily life”.
The mother’s affidavit in support of her application to introduce the affidavit of 25 February 2015 into evidence indicates that the earlier affidavit accompanied an application in a case. That application was not provided to us, and we are therefore unaware of the relief it sought. We also do not know to what extent, if at all, the mother sought to agitate the application on the day judgment was delivered. In fact, we have no way of knowing whether her Honour was aware of its existence, since we note from the record that it was filed electronically at 4.15 pm on the day before the judgment was delivered.
The content of the mother’s affidavit would clearly be controversial. In any event, it is readily apparent to us that even had it been available to the trial judge, it would have made no difference to the outcome.
5) Affidavit of Ms A
The mother seeks to rely on an affidavit purporting to have been sworn by Ms A on 9 February 2016. While the first and last pages of the affidavit appear to have been properly executed, the one page that contains the evidence is not signed by either the deponent or the witness. On this occasion, we observe that the witness was a properly qualified person, being a Deputy Registrar of the Magistrates Court of Victoria. We find it difficult to accept that a person holding such an office would witness an affidavit by signing the first and last pages, but failing to witness the page containing the actual evidence.
The affidavit states that Ms A is a Family Violence Liaison Worker. It contains evidence of discussions observed by Ms A at trial between the mother and counsel for the Independent Children’s Lawyer. Once again, this affidavit contains the word “privy”. In any event, the main purpose of the affidavit appears to be to corroborate the mother’s claim that she had been assured by the Independent Children’s Lawyer that the trial judge would be provided with copies of “the 000 police recording and three supporting affidavits provided to [the Independent Children’s Lawyer] the previous week”.
While the mother’s affidavit sworn in support of the application to introduce further evidence also refers to these “three affidavits” sent to the Independent Children’s Lawyer, it is not clear to us what affidavits are being referred to or their potential relevance. We take it therefore that the primary purpose for which the mother wishes to rely on Ms A’s affidavit is to bolster her case for us to take into account, as further evidence, the transcript of the “000 call” she made on 2 March 2012 and the recording of that call.
This part of the further evidence on which the mother relies will not assist her case because, for reasons we will give later, the production into evidence of the “000 call” or the transcript of that call will not assist her case.
6) Affidavit of Mr B
Mr B was apparently a neighbour of the mother and father. His affidavit, upon which the mother now seeks to rely in this appeal, has all of the same defects as the affidavit of Ms J.
The mother acknowledged that she had drawn Mr B’s affidavit and that it has a dazzling array of claims supporting her case. These include assertions by Mr B designed to establish that:
·the father was earning more than $200,000 a year;
·the father had hidden bank accounts;
·with the help of his present wife, the father had “provided dodgy paperwork to the Family Court so he could hide his real income”;
·the father and his current wife “had someone inside the police force helping them”; and
·the mother’s allegations of domestic violence were true.
The affidavit also claims that in 2008 it was Mr B who contacted the police when the father “attacked [the mother] in the front yard with a cricket bat”. This is a reference to an incident mentioned in her Honour’s reasons where the police arrested a third party, unknown to either the mother or the father, who had attacked the mother in her front yard – but the mother maintained that she had been attacked by the father.
Given that we are unable to be satisfied that Mr B ever swore to the accuracy of affidavit, that its contents are highly controversial and that no adequate explanation was provided as to why the evidence was not adduced at trial, we decline to exercise our discretion to admit it.
7) Affidavit of Ms C
Ms C was apparently another neighbour of the mother and father. Her affidavit, purporting to be witnessed by the same Deputy Registrar of the Magistrates Court of Victoria, suffers from the same defect as the affidavits earlier discussed.
Ms C’s affidavit purports to corroborate in detail the mother’s allegations of the father’s violence. For example, she says she saw an incident in which the father assaulted one of the children in the backyard. Ms C was also “privy” to backyard conversations she overheard between the father and his present wife, during which the father admitted he had “hidden money where [the mother] would never find it” and plotted to prove that the mother was “an alcoholic or a drug addict”.
As a member of the bench suggested to the mother in the course of hearing her submissions, she could hardly have wished for two more helpful witnesses than Mr B and Ms C to corroborate such significant parts of both her parenting and property cases. Given the circumstances in which the affidavit was witnessed, the controversial nature of the material and the fact that no adequate explanation has been provided for the evidence not having been called at trial, we cannot allow this evidence to be received.
8) Affidavit of the mother sworn 22 April 2016
The eighth application to introduce further evidence relates to an affidavit of the mother sworn on 22 April 2016.
We do not consider it necessary to attempt to describe all of the material in the affidavit. Suffice to say that it includes claims about the mother having been “verbally abused” by a “social worker from Child Protection” and about documents having gone missing from the “Family Court File Viewing Area”.
The only part of the material we need to refer to specifically, because of the obvious importance placed upon it by the mother, is what purports to be a transcript of the “000 call” on 2 March 2012. In summary, the transcript indicates that the mother informed the operator that she had been assaulted by the father, including being hit in the face. When asked whether she had ever been hurt before, the mother claimed the father had broken her arm.
Assuming that the transcript of the telephone call was available at the trial, we do not consider that it would have provided any assistance to the trial judge in determining whether the mother had, in fact, been attacked by the father. There was no doubt the police had been called, the real issue being what had happened before they were called. Given the finding of the trial judge about the mother’s great propensity to exaggerate about such matters (including about the assault in the front yard), the transcript would not have assisted.
We do not propose to receive this additional material.
The grounds of appeal
We turn now to the grounds of appeal. Section 94AAA(7) of the Act permits reasons to be given in “short form” when an appeal is to be dismissed, provided the appeal does not raise any question of general principle. Those conditions are satisfied and we propose to give our reasons in “short form”.
Ground 1
This ground asserts that the trial judge “failed to take into account some relevant matter”. The “relevant matter” referred to was evidence allegedly given to the Independent Children’s Lawyer (including “a copy of 000 call to police”) but which was never tendered.
Clearly, there can be no error on the part of the trial judge for failing to take into account evidence that was not before her. This ground therefore fails.
Ground 2
As best we comprehend it, this ground relates to the fact that the affidavit of Ms J was not taken into account in determining the liabilities.
As the affidavit was never tendered to the trial judge, there can be no error in failing to take it into account.
Ground 3
This ground asserts error on the part of the trial judge in failing to take into account that documents produced under subpoena had been “removed from the Family Court that held extreme weight to Family Violence and ongoing coercive controlling behaviour by [the father]”.
In the absence of a transcript we cannot be satisfied of the extent to which, if at all, the alleged removal of the subpoenaed documents was agitated during the course of the trial. We therefore cannot be satisfied that there was any error on the part of the trial judge in dealing with this issue.
Ground 4
The success of this ground was dependent upon the success of the mother’s first application to adduce further evidence. As that application has been unsuccessful, there is no need for us to consider this ground further.
Ground 5
By this ground it is asserted that the trial judge failed to take into account that:
On the 30th of December 2014, the application made by the father … did not have the current interim orders made on the 22nd of February 2013. In these said consent orders, it was agreed between parties for [the children] to attend upon psychologists.
This ground is difficult to follow and, in our view, does not disclose appealable error by the trial judge.
Ground 6
By this ground it is asserted that the trial judge failed to take into account that:
The evidence from Victoria Police was not true or correct. The LEAP reports that Justice Thornton based her Judgement upon have now proven to be incorrect.
Nothing put to us by the mother persuaded us that the police reports have “now proven to be incorrect”. Accordingly, there is no merit in this ground.
Grounds 7, 8 & 9
We did not permit the mother to agitate these grounds.
Ground 10
By this ground the mother asserts that the trial judge failed to take into account “the complexities of Family Violence, including financial abuse relating to outstanding debts”.
Nothing put to us in argument by the mother persuaded us that there was any merit in this complaint.
The outcome and costs
There is no merit in any of the mother’s complaints. The appeal will therefore be dismissed.
The father sought costs in the event that the appeal was dismissed. The mother opposed the application for costs on the basis of her poor financial position.
Section 117 of the Act provides that each party to proceedings should bear their own costs, unless the court is of the opinion that there are circumstances to justify making an order for one party to bear all or part of the costs of the other party. In arriving at its decision, the court must have regard to the matters set out in s 117(2A).
The mother has been wholly unsuccessful and this provides a basis for making an order for costs, especially where she acknowledged at the outset of her submissions that she felt that she had no better than a 10 per cent chance of success.
The father earns around $85,000 per annum. The mother is apparently unemployed and therefore pays no child support. She informed us that her entire property settlement has been dissipated.
Although we take account of the parties’ financial positions, impecuniosity is not a bar to a costs order, since otherwise an impecunious party could litigate with impunity: Lenova & Lenova(Costs) [2011] FamCAFC 141 at [12].
Given the lack of merit in all of the mother’s complaints, we intend to order her to pay the father’s costs.
Although the father was self-represented, he advised us that he had incurred costs in the region of $3,000–$4,000, including about $3,000 in obtaining advice from solicitors relating to the appeal. The mother did not accept that the father had incurred this amount and we therefore directed him to provide to us within seven days a copy of the invoice received from his solicitors.
We have now received a copy of the invoice, which indicates that the father has been charged $4,400 for work done relating to the appeal. The invoice does not contain enough information to permit us to determine if the amount is appropriate. Indeed, some aspects of the invoice trouble us (for example $160 for one telephone call to the Appeal Registrar).
Although we would have fixed costs if we could do so, we cannot assess the proper quantum. We will therefore order that the costs be assessed, in the event they cannot be agreed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ryan & Austin JJ) delivered on 10 June 2016.
Associate:
Date: 10 June 2016
0