Reid and Lynch (Costs)
[2010] FamCAFC 204
•27 October 2010
Family Court Of Australia
| REID & LYNCH (COSTS) | [2010] FamCAFC 204 |
| FAMILY LAW - COSTS – Where the appeals succeeded on a question of law – Where no submissions were received from the Father and the Independent Children’s Lawyer as per the court’s orders – Costs certificates granted to the Mother pursuant to s 9 of the Federal Proceedings (Costs) Act in respect of the appeals |
| Rice and Asplund (1979) FLC 90-725 |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| APPLICANT: | Ms Reid |
| FIRST RESPONDENT: | Mr Lynch |
| SECOND RESPONDENT: | Independent Children’s Lawyer |
| FILE NUMBER: | CAC | 111 | of | 2009 |
| APPEAL NUMBER: | EA EA | 57 70 | of of | 2010 2010 |
| DATE DELIVERED: | 27 October 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | By way of written submissions |
| JUDGMENT OF: | Finn, O’Ryan & Strickland JJ |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 20 April 2010 & 11 June 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 553 & [2010] FMCAfam 617 |
Representation
| SOLICITOR FOR THE APPLICANT: | Commins Hendriks, Solicitors |
| THE RESPONDENT: | Self-Represented |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Loretta Terrill Family Lawyer |
Orders
The Applicant Mother is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Mother in respect of the costs incurred by the Mother in relation to the appeal determined on 24 June 2010.
The Applicant Mother is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Mother in respect of the costs incurred by the Mother in relation to the appeal determined on 17 September 2010.
IT IS NOTED that publication of this judgment under the pseudonym Reid & Lynch (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 57 & EA 70 of 2010
File Number: CAC 111 of 2009
| MS REID |
Applicant
And
| MR LYNCH |
First Respondent
And
| Independent Children’s Lawyer |
Second Respondent
Reasons For Judgment
Introduction
Before us is an application by Ms Reid (“the Mother”) for costs of appeals before the Full Court which concluded by judgments pronounced on 24 June 2010 and 17 September 2010.
The First Respondent to the appeals was Mr Lynch (“the Father”). The Second Respondent was the Independent Children’s Lawyer. At the hearing of the appeals the Father appeared without legal representation.
Background
On 24 June 2010 we heard the following two appeals by the Mother:
· an appeal against orders made by Neville FM on 20 April 2010 which, in effect, permitted the Father to continue to litigate certain parenting issues relating to the child of the parties’ relationship when such issues had been the subject of orders made by consent by the Federal Magistrate on 30 July 2009; and
· an appeal against orders made by Neville FM on 11 June 2010 whereby his Honour refused to stay the orders which were the subject of the first appeal, and required the parenting issues between the Father and the Mother to proceed to a final hearing on 28 June 2010.
At the conclusion of the hearing on 24 June 2010, in relation to the second appeal we made the following orders:
1. The appeal (EA 70 of 2010) against the orders made in the Federal Magistrates Court on 11 June 2010 be allowed.
2. The orders be set aside.
3. The final hearing of proceedings between the mother, [Ms Reid] and the father, [Mr Lynch], be stayed pending delivery of the Full Court’s judgment in the appeal against the order of 20 April 2010 (appeal EA 57 of 2010).
It is noted that reasons for these orders will be provided in the reserved judgment of the Full Court in relation to appeal EA 57 of 2010.
It is further noted that it is not intended that these orders should effect the final hearing of proceedings between the mother, [Ms Reid] and [Mr L]; that matter remains a matter for determination by the Federal Magistrates Court or agreement between the parties. (bold in original)
The orders were made on the basis that we would provide our reasons when we pronounced our judgment in relation to the first appeal.
On 17 September 2010 we delivered our reasons for judgment for both appeals and made the following orders in relation to the first appeal:
1. The appeal against the refusal of Federal Magistrate Neville on 20 April 2010 to dismiss the application filed by the Respondent on 10 February 2010 be allowed.
2. The order and notation made on 20 April 2010 be set aside.
3. The application filed on behalf of the Respondent on 10 February 2010 be dismissed.
4. Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeals by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other parties 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 Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other parties.
6. Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Eastern Region Appeal Registry of the Family Court of Australia and serving it on the other parties within a further 7 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 parties.
In relation to the first appeal, the complaints by the Mother fell into two broad categories: first, what was described as the matters in Rice and Asplund (1979) FLC 90-725 and Res Judicata, together with an issue about the adequacy of reasons; and secondly, procedural fairness issues. We were of the view that there was substance in the Mother’s challenge based on the Rice and Asplund principle. We were also of the view that given what we decided in relation to the Rice and Asplund issue, it was unnecessary for us to consider the procedural fairness complaint. However, we were of the view that there was considerable merit in the complaint.
We then dismissed the Father’s application filed on 10 February 2010 on the basis that having regard to all the evidence which was before the Federal Magistrate and which was before us, the Father had not established that there was a significant change in circumstances subsequent to orders of 30 July 2009, or that there was a material factor not then disclosed.
In relation to the second appeal, for reasons we gave, we were of the view that the trial of the applications for final orders in the proceedings between the Mother and the Father, that was due to commence on the Monday following the hearing before us, could not possibly proceed. Further, that we would not have had the opportunity to pronounce our judgment in sufficient time to enable the trial to proceed and thus the two appeals would be rendered nugatory. We were of the view that, in the circumstances, the second appeal should succeed.
At the conclusion of the hearing before us we did not receive submissions in relation to costs and thus on 17 September 2010 we made directions in relation to the filing of any application for the costs of the appeals.
On 24 September 2010 the Eastern Region Appeal Registrar received a letter dated 23 September 2010 from the solicitors for the Mother in which an application was made on behalf of the Mother for a certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).
On behalf of the Mother it was submitted that the proceedings fell within the definition of a “Federal appeal” as defined in the Federal Proceedings (Costs) Act and that the appeal succeeded on a question of law.
On 13 October 2010 the Eastern Region Appeal Registrar received from the solicitors for the Mother a letter dated 8 October 2010 to which was attached copies of two letters dated 8 October 2010. One letter was addressed to the Father and a copy of the letter dated 23 September 2010 from the solicitors for the Mother to the Eastern Region Appeal Registrar was said to be attached by way of service. The second letter was addressed to the Independent Children’s Lawyer and a copy of the letter dated 23 September 2010 from the solicitors for the Mother to the Eastern Region Appeal Registrar was said to be attached by way of service.
No written submissions have been received from either the Father or the Independent Children’s Lawyer pursuant to orders 4 and 5 made by us on 17 September 2010.
Discussion
Section 9 of the Federal Proceedings (Costs) Act provides:
(1) Subject to this Act, and in particular without limiting section 6, where:
(a)a Federal appeal referred to in paragraph (d), (j), (ja) or (k) of the definition of Federal appeal in subsection 3(1) succeeds on a question of law; and
(b)in accordance with section 117 of the Family Law Act 1975, each party to the appeal bears his or her own costs;
the court that heard the appeal may, on the application of the appellant to the appeal, grant to the appellant a costs certificate in respect of the appeal.
(2) The certificate that may be granted under subsection (1) by a court to an appellant to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
In s 3 of the Federal Proceedings (Costs) Act a “Federal appeal” is defined in paragraph (ja) to include an appeal to the Family Court from a judgment of the Federal Magistrates Court.
Section 12 of the Federal Proceedings (Costs) Act provides that: “The jurisdiction conferred on a court by this Act to grant costs certificates may be exercised by a member of that court sitting in Chambers”.
We are satisfied that the appeals were “Federal appeals” and they succeeded on a question of law. However, we also have to be satisfied that in accordance with s 117 of the Family Law Act 1975 (Cth), each party to the appeals should bear his or her own costs.
The Mother did not specifically make an application for an order pursuant to s 117(2) of the Family Law Act and no submissions were made on her behalf in relation to each of the matters in paragraphs (a) to (g) of s 117(2A) of that Act. However, we note that the Father appeared before us without legal representation and in the submissions of the Mother it was said that “our client is responsible for bearing her own costs of the proceedings”. Thus, we infer that although the Mother may have established a justifying circumstance, namely that the Father was “wholly unsuccessful in the proceedings”, the Mother accepted that in the circumstances of this case, s 117(1) would still apply, namely that each party bear his or her own costs.
In the circumstances, we are satisfied that in accordance with s 117 of the Family Law Act, each party to the appeals should bear his or her own costs and that a certificate be granted to the Mother pursuant to s 9 of the Federal Proceedings (Costs) Act in respect of each appeal.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court Finn, O’Ryan and Strickland JJ delivered on 27 October 2010.
Associate:
Date: 27 October 2010
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