Reynolds & Stokes (No 2)
[2022] FedCFamC1F 1057
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Reynolds & Stokes (No 2) [2022] FedCFamC1F 1057
File number(s): MLC 5473 of 2019 Judgment of: HARTNETT J Date of judgment: 23 December 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Parenting and property –Where the father sought a stay of the orders preventing him from having immediate contact and/or spend time with the children – Where the father had filed a Notice of Appeal – Where the mother and Independent Children’s Lawyer opposed the father’s Application – Where the contact moratorium period outlined in the final orders ended two days prior to hearing – Where the father could communicate and spend time with the children in accordance with the final orders – Application for stay refused – Application dismissed with costs. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.17
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Nada & Nettle (Costs) (2014) FLC 93-612
Yunghanns & Yunghanns (2000) FLC 93-029
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 21 December 2022 Place: Melbourne (via videolink) Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Mr Testart Solicitor for the Respondent: Leslie Family Law Counsel for the Independent Children's Lawyer: Mr Glezakos Solicitor for the Independent Children's Lawyer: VM Family Lawyers ORDERS
MLC 5473 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR REYNOLDS
Applicant
AND: MS STOKES
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARTNETT J
DATE OF ORDER:
23 December 2022
THE COURT ORDERS THAT:
1.The father pay the costs of the mother in respect of the Application in a Proceeding, filed on 14 December 2022, with such costs fixed in the sum of $6,479, together with the costs of the Independent Children’s Lawyer in respect of the Application in a Proceeding, with such costs fixed in the sum of $2,642. Such payments of costs shall be made by the father to the mother and the Independent Children’s Lawyer within 30 days hereof, and failing the making of the payment and/or the payments, interest shall accrue in respect to such payment and/or payments at the rate prescribed in r 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) with such payment and/or payments to be paid to the mother and/or the Independent Children’s Lawyer out of the father’s share of the net proceeds of sale of the former matrimonial home as provided for in Order 35(d)(iv) of the orders made 17 November 2022, and before payment out to the father of his said entitlement.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reynolds & Stokes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
This judgment contains reasons in respect of the order made on 21 December 2022 dismissing the applicant father’s (“the father”) Application in a Proceeding and in support of the costs orders made by the Court this day.
By Application in a Proceeding filed 14 December 2022, the father sought that the Court make the following orders:
(1)that the most recent final orders made by Justice Hartnett be removed and previous orders be reinstated with any changes required to be determined through a further hearing;
(2)a stay be granted on existing orders to allow the father immediate contact with the children;
(3)the Court cover all the father’s future legal costs to have the opportunity for a fair hearing;
(4)the asset pool be reassessed with Ms Stokes providing all relevant documentation before a decision can be made; and
(5)that the father be granted leave to re-open evidence subject to the judgment reserved on 17 November 2022.
In support of that Application, the father relied upon an affidavit sworn by him on 5 December 2022 and filed on 14 December 2022.
In response to the Application in a Proceeding, the respondent mother (“the mother”) filed a Response on 20 December 2022, wherein she sought that the Application in a Proceeding filed by the father on 14 December 2022 be dismissed, together with an order that the father pay her costs in relation to the Application on an indemnity basis. In support of her Response, the mother relied upon an affidavit filed on 20 December 2022. Additionally, the mother relied upon an outline of submissions as filed on 19 December 2022.
The Independent Children’s Lawyer (“ICL”) appeared at the hearing, but filed no material. The ICL sought that the Application of the father be dismissed, and the ICL’s costs in the sum of $2,079, be paid by the father.
Final parenting and property orders were made and reasons for judgment delivered in this matter on 17 November 2022. Those orders were made by me, and the Application in a Proceeding proceeds before me.
Following the making of those final orders, the father filed a Notice of Appeal on 13 December 2022, being within the requisite permissible time.
I find the orders as sought by the father in his Application in a Proceeding are misconceived as indeed was submitted by both counsel for the mother and counsel for the ICL. The only order as sought that could proceed at the hearing was paragraph 2 of the orders sought by the father.
The other orders as sought were not appropriate orders. What the father seeks to do in his application for a stay is to have me review and/or set aside the final orders made. He seeks to agitate further matters. Those are matters for the Full Court on appeal. The father is, of course, entitled to challenge the final orders as made, and reasons for judgment as delivered.
There is no issue that the stay application, as found in paragraph 2 of the orders sought by the father, is a matter that can be heard by me. The grant of a stay of orders pending an appeal is discretionary. The principles relevant to the stay application are as set out in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, although the list of principles stated therein are not exhaustive. The onus for the stay is on the father. The principles as referred to are set out at [17] and [18] of that judgment and are as follows:
17.This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
18.The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see TheCommissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
•the desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
In my consideration of the above, I turn firstly to the terms of the order as sought, which is that the Court grant a stay “on existing orders to allow me immediate contact with my children”.[1] The first issue, is what existing orders, being those orders made 17 November 2022, do not allow the father immediate contact with his children X, born 2011, and Y, born 2014, (collectively “the children”).
[1] Father’s Application in a Proceeding filed 14 December 2022, proposed Order 2.
The date of the hearing of the father’s Application in a Proceeding was 21 December 2022. It was conceded by the father, in submissions before the Court, that the children concluded the school term on Monday, 19 December 2022, and that, accordingly, the “contact moratorium period”, as set out in Orders 6 and 7 of the orders made 17 November 2022 had expired. As at the date of hearing, the existing orders make provision for the father to have contact with his children, and also to communicate with them. The orders that make such provision are Orders 8(c), 9(a) and 11.
The father’s evidence does not establish a proper basis for the stay. It is, rather, replete with criticism of the findings, the process, and the judicial officer.
There is no utility in the Application in a Proceeding in pursuing an order as sought in the terms of paragraph 2 of that application.
More generally, the father has not properly identified the basis on which any stay of any orders should occur in the exercise of my discretion.
The mother is entitled to the benefit of the judgment made on 17 November 2022 and is entitled to presume that judgment is correct. Whilst the father has filed a Notice of Appeal, counsel for the mother submitted that such grounds were unmeritorious and the statement of the grounds “incompetent almost entirely”. It is difficult, in my view, on a reading of the grounds of appeal, to discern that the father has an arguable case.
The appeal will not be rendered nugatory if a stay is not granted.
Any stay of the parenting orders will, I find, not be in the children’s best interests. The father’s coercive behaviours and undermining of the children’s relationship with their mother were significant matters going to what parenting orders would promote the children’s best interests.
COSTS
At the hearing of the matter on 21 December 2022, the mother and the ICL both sought costs in respect of the Application, the mother on an indemnity costs basis, and the ICL in accordance with a Victoria Legal Aid scale of costs.
LEGAL PRINCIPLES
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the general rule that each party shall bear their own costs. However, the Court, being satisfied that there are circumstances justifying it doing so, may make such order for costs as it considers just in accordance with the Court’s discretion.[2] In considering what (if any) order for costs should be made, the Court shall have regard to the matters set out in s 117(2A) of the Act. The Court is not required to consider these matters in any particular order, and no matter takes precedence over another. It is also not necessary for there to be more than one relevant consideration for the purposes of deciding that an order is justified.
[2] Family Law Act 1975 (Cth) s 117(2).
CONSIDERATION
In my view, there are circumstances which justify a costs order on an indemnity basis to be paid by the father to the mother as sought by her, and a party/party costs order to be paid by the father to Victoria Legal Aid as sought by Victoria Legal Aid.
This Application was entirely misconceived, and the father was clearly advised that he should not proceed with his Application, by both the ICL and the solicitor for the mother. The ICL’s correspondence to the father on 14 December 2022 was relevantly as follows:[3]
It is not the role of the independent children’s lawyer to provide you with legal advice, however, I consider it reasonable to bring to your attention that, if you wish to challenge an order made by the Court, this should be done by way of a notice of appeal, which must be filed within 28 days of the date of the order being appealed against.
It would appear that, given the orders you now seek, a notice of appeal is a more appropriate manner in which to seek such relief.
In the circumstances, I invite you to withdraw your application. In the event that you elect to proceed with the application in a proceeding, it seems likely that there will be an application for costs arising.
You should, of course, seek your own independent advice in respect of your application, any appeal, and the matter more generally.
[3] Mother’s affidavit filed 20 December 2022, Annexure MS-5.
Correspondence from the solicitors acting for the mother included, relevantly, advice that the mother opposed the orders sought in the Application, and noted that the documents served, in their view, predominantly attempted to revisit, challenge and re-litigate issues which had already been heard and determined by the Court. Further, that correspondence stated, relevantly:[4]
In particular, we say that paragraphs 1, 3, 4 and 5 of the orders sought in your application are entirely misguided, have no prospect of success and are bound to fail.
Paragraph 2 of your application appears to seek a stay of the final orders made 17 November 2022 to “allow you immediate contact with your children”. You have not particularised any other basis upon which you are seeking a stay of the final orders pending the outcome of your application and/or your appeal.
Pursuant to the final orders, the children are scheduled to resume in person, overnight time with you at midday on 23 December 2022, just two days after the date your application is scheduled to be heard.
For that reason, we say that it is inevitable that the Court will dismiss your application to stay the final orders for the purposes of the children resuming their time with you.
In all of these circumstances, and having regard to the email from the independent children’s lawyer on 14 December 2022, we invite you to withdraw your application in a proceeding and confirm same in writing by no later than 4 pm on Friday, 16 December 2022.
In the event you do not withdraw your application in a proceeding by that time, resulting in our client having to respond, prepare for and appear represented by counsel at the interim defended hearing on 21 December 2022, it will be submitted on the hearing date that your application has no merit, and ought to be summarily dismissed.
[4] Mother’s affidavit filed 20 December 2022, Annexure MS-5.
In my view, the conduct of the father in proceeding with his Application was reprehensible, it having entirely no merit. The mother and the ICL should not be out of pocket in any way, for having to respond to the Application.
The fact that the father may be “impecunious, even indigent, is not a bar to the making of a costs order if the Court is otherwise of the opinion that an order ought to be made.”[5]
[5] Nada & Nettle (Costs) (2014) FLC 93-612.
Whilst at trial the father proceeded on the basis that his income was approximately $25,000 per annum, there is now material, as attached to the affidavit of the mother, from Services Australia Child Support advising the parties of a changed child support assessment in that same period in which the father asserted his income to be approximately $25,000 per annum. The father’s income is now assessed to be $189,475 for the financial year ending 2022. The mother was unsure how this reassessment of child support had occurred, but essentially, the outcome is that the mother is no longer required to pay child support to the father, but rather the father is required to pay to the mother the sum of $2,098.50 each month.[6] The mother further deposed to being advised that there was now a child support debt owing to her for the last two years in the sum of approximately $46,000.[7]
[6] Mother’s affidavit filed 20 December 2022, paragraph 3(k).
[7] Mother’s affidavit filed 20 December 2022, paragraph 3(k).
Whilst the father denies that his income is that as assessed by Services Australia, and no doubt will challenge same, the Court is of the view that it is not possible for the Court to determine his income, on his evidence, and otherwise finds, whether the father is or is not impecunious - though it would appear, on the balance of probabilities, that he is not - an order should nevertheless be made.
A general rule is that costs are payable on a party/party basis, unless the Court decides to exercise its discretion to order costs on other terms, including indemnity costs.
The circumstances justifying an order for indemnity costs are not closed.[8] The Court, in exercising its discretion, must be satisfied that the circumstances of the case “warrant the making of an order for the payment of costs other than on a party/party basis”.[9] In my view, the father made an imprudent refusal of the suggestions made to him by the mother’s solicitors and the ICL that he not persist with his misconceived application. Furthermore, having been so advised by those parties, and on his own assessment of the matter, the father should have known that he had no chance of success. His proceeding with the Application was not bona fides.
[8] Yunghanns & Yunghanns (2000) FLC 93-029.
[9] Yunghanns & Yunghanns (2000) FLC 93-029.
I am satisfied there are circumstances in this case which justify the Court departing from the general rule that each party pay their own costs. I am satisfied that costs should be fixed on an indemnity basis for the mother. The quantum claimed by the ICL for party/party costs is reasonable as are the indemnity costs of the mother. In my view, such orders for costs are apt in the circumstances.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 23 December 2022
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