Rigby & Olsen
[2021] FamCAFC 100
•24 June 2021
FAMILY COURT OF AUSTRALIA
Rigby & Olsen [2021] FamCAFC 100
Appeal from: Olsen & Rigby [2020] FamCA 885 Appeal number(s): EAA 160 of 2020 File number(s): SYC 5015 of 2017 Judgment of: AINSLIE-WALLACE J Date of judgment: 24 June 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Prospects of success – Financial circumstances – Application dismissed – Applicant to pay the respondent’s costs of the application in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.05(2)
Cases cited: Halsbury & Halsbury [2008] FamCAFC 170
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
JRS & KM (2005) FLC 93-223; [2005] FamCA 338
Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207
Sawer & Sawer [2007] FamCA 140
Division: Appeal Division Number of paragraphs: 30 Date of hearing: 18 June 2021 Place: Sydney Counsel for the applicant: Ms Christie SC Solicitor for the applicant Pearson Emerson Family Lawyers Counsel for the eespondent: Mr Todd Solicitor for the respondent Watts McCray (NSW) Pty Ltd The Independent Children’s Lawyer: No appearance ORDERS
EAA 160 of 2020
SYC 5015 of 2017APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS OLSEN
Applicant
AND: MR RIGBY
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 26 May 2021 seeking security for costs of the appeal is dismissed.
2.The applicant pay the respondent’s costs of the application fixed in the sum of $5,000 within thirty (30) days of the date of this order.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rigby & Olsen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:
On 23 October 2020 a judge in the Family Court made final parenting orders as between Ms Olsen (“the mother”) and Mr Rigby (“the father”) in relation to the parties’ only child B born in April 2017 (“the child”).
In short, the primary judge found in a number of respects that that the father posed an unacceptable risk of harm to the child and, but for one of those risks, his Honour found that the risk could be ameliorated by supervised contact. However, in relation to the impact of the father spending time with the child on the mother’s accepted frail mental health, the primary judge found that there was a risk that the child spending time with the father would cause a deterioration in the mother’s mental health with the effect that it would impair her ability to care for the child. In that event, the primary judge concluded that the child’s time with the father should be limited to “identity time” supervised by a professional supervisor (at [427]). The primary judge ordered that for a period of up to four hours on the first Sunday of each month up until the child commences kindergarten the child spend time with the father. Thereafter on the first Sunday of each second month (being six times per year).
On 20 November 2020 the father filed a Notice of Appeal against those orders.
On 26 May 2020 the mother filed an Application in an Appeal seeking an order that the father lodge $50,000 to be held as security against any costs that may be awarded to her if the appeal filed by the father is unsuccessful.
The application is opposed by the father.
THE RELEVANT PRINCIPLES
In considering the issue of security for costs it is important to bear in mind that the father brings this appeal as of right and any order that would restrict that right requires careful scrutiny.[1]
[1] JRS & KM (2005) FLC 93-223 at [22].
The principles governing an application for security for costs of an appeal were summarised in Sawer & Sawer [2007] FamCA 140 where the Full Court said as follows:
19.The power in this Court to make an order for security for costs is to be found in s 117(2) of the Act, which is in the following terms:
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) 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.
…
21.The authorities establish that in exercising the discretion to order security for costs, it may also be relevant for the Court to consider in addition to the financial circumstances of the parties and the other five specific matters mentioned in s 117(2A), the following matters:
a) the prospect of success of the litigation;
b) whether the claim for security is made bona fide;
c) whether or not an order for security would stifle the litigation;
d)whether or not the litigation may involve a matter of public importance;
e)whether or not there has been a delay in bringing the application for security;
f) whether there would be difficulty in enforcing an order for costs…
…
These factors are largely reflected in r 19.05(2) of the Family Law Rules 2004 (Cth).
Turning then to the matters relevant to the determination of this application.
Prospects of success
It is necessary to consider the prospects of success of the appeal and whether the appeal is arguable. In Jackamarra v Krakouer (1998) 195 CLR 516 at 540, Kirby J said (albeit in the circumstances of an extension of time in which to appeal):
… A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile.
(Footnote omitted)
The Notice of Appeal contains four grounds of appeal. Broadly speaking, the father challenges the primary judge’s discretion in concluding that the father poses an unacceptable risk of harm to the child (Ground 1) and making orders for supervised “recognition contact” between the father and the child (Ground 4), that the primary judge failed to provide adequate reasons for his decision (Ground 2) and that the primary judge failed to have proper regard to and did not place sufficient weight on a range of evidence (Ground 3).
The mother submitted that, given that the appeal does not challenge many of the factual findings of the primary judge as to the father’s conduct, the grounds in fact are complaints that the primary judge made findings with which the father does not agree. Senior Counsel for the mother submitted that the appeal had no merit and was “doomed to fail”.
For the father it was argued that the thrust of the appeal as articulated in Grounds 1 and 4 was to the primary judge’s conclusion that because of the mother’s fragile mental health, any time with the child must be limited to time sufficient to permit the child to recognise the father in circumstances where other identified risks could be ameliorated by supervision of the child’s time with the father. It was further submitted that the appeal challenged the basis for concluding that the child’s time should be so restricted and that it should be subject to permanent supervision.
I do not accept that the father’s appeal is “doomed to fail” and I am persuaded that the appeal raises arguable issues.
Financial circumstances of the father
There seemed to be no dispute as to the father’s financial circumstance, which have improved since the parenting orders were made because he no longer has the same financial burden to pay for supervision costs of his time with the child as he did previously. The father said that his parents have assisted him financially as to his costs and it was not suggested that he would not have that advantage in the future. The father has paid funds into his solicitor’s trust account in anticipation of the appeal.
Thus, the father has income, some small value assets and the financial assistance of his parents. I am persuaded that, if a costs order was made in the event that the appeal failed, the father can meet that order.
It is to be noted here that the amount of the security sought to be lodged was $50,000. The mother’s evidence was the whole of her costs of and incidental to the appeal have been estimated to be in the order of $68,000.[2] Thus it seems that the amount sought to be secured is, if not provision for indemnity costs, to make provision for virtually all of the mother’s costs to be incurred. It was not entirely clear whether the mother’s counsel was foreshadowing an application for indemnity costs and thus the amount sought to be secured. No particular explanation was advanced as to why that figure for security was selected.
[2] Mother’s affidavit filed 26 May 2021, paragraph 23.
Next, the mother submitted that if an order for costs was made the father may not comply with its payment. In support of this submission, counsel for the mother submitted that an order was made at the conclusion of the trial that the father pay one half of the costs of the Independent Children’s Lawyer.
It was agreed that the father was late in making that payment.
The father’s evidence in explanation was that, having already made a payment towards the costs of the Independent Children’s Lawyer before the hearing, he enquired whether any further sums were owed and on being told that a sum was outstanding, paid that promptly.
The father complied with the order albeit late.
Finally, on this point, it was argued for the mother that in the event that the father did not pay any ordered costs, there could be no enforcement against his parents. That is of course true, but as his evidence makes clear, he is working and earns about $72,300 gross per annum and, after payment of his weekly expenses, has a surplus of income over expenditure and this is after he has met his present child support obligation and his obligation to pay the child’s private health insurance cover.
I am unable to find that if a costs order was made against the father, it could not be enforced against him in the usual way.
Before concluding the discussion of the application, I bear in mind what was said by the Full Court in Halsbury & Halsbury [2008] FamCAFC 170:
34.Before concluding we take the opportunity to make the following observations regarding applications for security in relation to the costs of an appeal. Such applications appear increasingly to be taking up the time and resources of the litigants and of the Court. The proper place of such applications and the competing rights that lie at the heart of such applications need to be borne in mind by those seeking them.
35.Appeals are a part of our system of law. They operate as part of the proper checks and balances on the actions and decisions of trial judges. Litigants have a right to appeal in circumstances where they, properly and bona fide, allege error on the part of the trial judge (subject of course to the requirements in certain circumstances of leave to appeal being granted). That right to appeal is an important part of our system of law. It should not be fettered except for good reason.
Thus, the necessary elements for the making of this order have not been established and the application for security for costs will be dismissed.
COSTS
In the event that the application was dismissed, the father sought an order that the mother pay his costs of meeting the application. While no schedule of costs was filed, counsel for the father was content for me to choose a figure which was fair and reasonable.
The mother is currently self-employed and has a small online business. She receives single parent payment and family tax benefit payments and has been receiving financial assistance from her parents to meet day-to-day expenses for her and the child. The mother’s parents also paid for the entirety of her legal fees for the proceedings below and will be paying her legal fees for responding to the father’s appeal.
Although the mother’s financial circumstances are not particularly strong, she has been wholly unsuccessful in this application and that, of itself ought to sound in a costs order.[3]
[3] Section 117(2A)(e) of the Family Law Act 1975 (Cth); Nada & Nettle (Costs) (2014) FLC 93-612 at [11].
In the event that the application was successful, the mother’s counsel sought a costs order in the sum of about $8,700. As counsel for the father submitted, that amount comprehends payment at a rate for senior counsel. He submitted a costs order in the father’s favour, in the event that the application was refused was something less than that sought by the mother. I am of the view that a sum of $5,000 is proper in the circumstances.
I will make an order for the mother to pay the father’s costs in the fixed sum of $5,000.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate:
Dated: 24 June 2021
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