Rendom and Burret & Anor
[2014] FamCAFC 8
•30 January 2014
FAMILY COURT OF AUSTRALIA
| RENDOM & BURRET AND ANOR | [2014] FamCAFC 8 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks to extend the time to file a Notice of Appeal – where the first respondent initially opposed the application but then consented to the order sought during the hearing – extension of time granted. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the applicant seeks costs in light of the late consent by the first respondent to the granting of an extension of time to file the Notice of Appeal – where there are circumstances justifying an order for costs – costs ordered as sought by the applicant. |
| Family Law Act 1975 (Cth) – s 117 | ||
| APPLICANT: | Mr Rendom | |
| FIRST RESPONDENT: | Ms Burret |
| SECOND RESPONDENT: | Mr Burret |
| FILE NUMBER: | MLC | 7110 | of | 2012 |
| APPEAL NUMBER: | SOA | 66 | of | 2013 |
| DATE DELIVERED:: | 17 January 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 17 January 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 15 July 2013 |
| LOWER COURT MNC: | [2013] FCCA 971 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Brown SC |
| SOLICITORS FOR THE APPLICANT: | DLA Piper Australia |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Stavris |
| SOLICITORS FOR THE FIRST RESPONDENT: | Anthony’s Solicitors |
| SOLICITORS FOR THE SECOND RESPONDENT: | Berry Family Law |
Orders
The time for the applicant to file and serve a Notice of Appeal against orders made by Judge O’Dwyer be extended to the close of business on Friday
7 February 2014.
The first respondent pay the costs of the applicant of and incidental to the application in an appeal filed on 24 October 2013 such costs to be assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rendom & Burret has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 66 of 2013
File Number: MLC 7110 of 2012
| Mr Rendom |
Applicant
And
| Ms Burret |
First Respondent
And
| Mr Burret |
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an application in an appeal filed on 24 October 2013, seeking an extension of time to appeal against orders made by Judge O’Dwyer. There was also an application for leave to appeal, but as I confirmed with Mr Brown SC, this court is not in a position to grant leave to appeal. Thus, although I am referring to there being an application seeking an extension of time to file a Notice of Appeal, that Notice of Appeal necessarily will comprise an application for leave to appeal and in the event that leave is granted, an appeal.
Ostensibly the orders of Judge O’Dwyer were made on 15 July 2013, but as is apparent from the documents filed in this case, that date does not accord with reality. As will be explained shortly, because of the position ultimately taken by the first respondent, I do not need to go into the detail of this issue, but it seems to me that those orders in fact were made somewhat later than 15 July 2013, and perhaps 1 August 2013 being the date on which the reasons for judgment ultimately were delivered by his Honour, and which reasons contained the orders that his Honour made. Whether there needs to be a change of the record in the Federal Circuit Court in relation to that is a matter that
Mr Brown’s instructors have already taken up administratively, but without success. I will not say anything more about that; I have no power or jurisdiction to do anything about it, and it may ultimately not need to be attended to. I leave it to Mr Brown and his instructors to take it further with the Federal Circuit Court if necessary.
In any event the application was called on for hearing today. Initially I was informed by Mr Stavris, who appears for the first respondent, that the application was opposed. I sought to clarify both the chronology of the matter and also the basis on which Mr Stavris’ client was opposing the application, and during that exercise Mr Byrne, the solicitor who appeared for the husband in the proceedings that are before the Federal Circuit Court, appeared before this court. He informed me that his client had not been served with the application that was before me today, that he had only learnt of the application at 11:45am this morning, and obviously he was concerned that his client’s position be known in relation to this matter. However, as a result of an adjournment when discussions then took place, I was told by Mr Byrne that his client did not wish to have this application adjourned but his client was not in a position to consent to, or oppose, the orders sought in the application.
Thus, the hearing proceeded, but Mr Stavris then indicated that he had obtained instructions and his client no longer opposed the application for the extension of time. In those circumstances I will make the order as sought.
I now have before me an application for costs by the applicant as a result of the order that has just been made, namely the order extending the time for the filing of a Notice of Appeal.
The submissions in support of the application primarily are based on the fact that consent has been sought at various stages, including by correspondence, to the granting of an extension of time. The consent was sought as early as August 2013, but it was not forthcoming, and it was not until this hearing got under way that the respondent’s counsel indicated that his instructions had changed, and his client no longer opposed the order sought.
Mr Stavris on behalf of his client opposes the order sought. He says that his client’s position changed as a result of, as he describes them, “fruitful discussions”, that have taken place today during a short adjournment. He also submits that the application would have been unnecessary if an Application in a Case had been filed in the Federal Circuit Court, formally seeking that
Judge O’Dwyer alter the date of his orders.
The background to that latter submission is that that was of course not done. What the applicant’s solicitors did though was to seek to have the date altered administratively. Whether that needs to be taken further by way of application for example is still an issue to be determined by the applicant.
Any application for costs in the Family Court of Australia and including the Full Court of the Family Court of Australia is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). That section in so far as it is relevant provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) (4A), and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
As is apparent the section provides that each party is to bear their own costs, but if the court is of the opinion that there are circumstances that justify it in doing so, the court may make such order as to costs as it considers just. The court is then directed to s 117(2A) which sets out the factors that the court should have regard to when considering whether an order for costs should be made, and also what the quantum of that order should be.
Mr Brown did not specifically address me on which factor or factors from
ss (2A) applies, but it would seem to me that his case is based on the conduct of the respondent in the proceedings which is paragraph (c) of that sub-section. That conduct comprises the refusal by the respondent to consent to the application given the circumstances relating to the date of the orders made by his Honour. I note that this conduct would also be caught by paragraph (g) of
s 117(2A).
I add that it has not been made apparent to me that there has been any new information brought to the attention of the first respondent today in relation to either what happened before the Federal Circuit Court Judge, or the reasons for the application having to be made. Thus I proceed on the basis that the facts known when consent was first sought as compared with the facts known today are the same.
I find that there are circumstances here that justify an order for costs and I propose to make such an order.
I do not accept Mr Stavris’ submission that costs should not be awarded because, as he put it, there should have been an Application in a Case back to Judge O’Dwyer. I do not accept that that was necessary, or provides a reason for the respondent to have opposed, and continued to oppose, this application.
I certify that the preceding fourteen (14) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 17 January 2014.
Associate:
Date: 30 January 2014
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