Sawer and Hugh (Costs) - [2011] FamCAFC 165

FAMILY COURT OF AUSTRALIA

SAWER & HUGH (COSTS)

[2011] FamCAFC 165

FAMILY LAW - APPLICATION IN AN APPEAL – COSTS – where the appeal was deemed abandoned after the father failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) –where the application to reinstate and the Notice of Appeal were formally dismissed – where the father was wholly unsuccessful in the proceedings - where the father’s alleged impecuniosity should not prevent an order for costs being made – where the father is to pay the mother’s costs fixed in the sum of $3,300 and the Independent Children’s Lawyer’s costs fixed in the sum of $962.50 within three months.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 22.13

APPELLANT:

Mr Sawer

RESPONDENT:	Ms Hugh
INDEPENDENT CHILDREN’S LAWYER	Mr Walker

FILE NUMBER:

LNC

511

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

16 August 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 March 2010

LOWER COURT MNC:

[2010] FamCA 290

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Lewis

SOLICITOR FOR THE RESPONDENT:

Levis Stace & Cooper

COUNSEL FOR THE ICL

Mr Walker

SOLICITOR FOR THE ICL

David Walker & Co

Orders

Within three [3] months of the date hereof the father pay the mother’s costs of and incidental to the application in an appeal fixed in the sum of three thousand three hundred dollars [$3,300].
Within three [3] months of the date hereof the father pay the costs of the Independent Children’s Lawyer of and incidental to the application in an appeal fixed in the sum of nine hundred and sixty-two dollars and fifty cents [$962.50].

IT IS NOTED that publication of this judgment under the pseudonym Sawer & Hugh (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 24 of 2010
File Number: LNC 511 of 2008

MR SAWER

Appellant

And

MS HUGH

Respondent

REASONS FOR JUDGMENT

Introduction

On 17 May 2011, for reasons which I then published, the father’s application in an appeal seeking an order reinstating his Notice of Appeal was dismissed.
The Notice of Appeal which had been filed on 14 April 2010 was deemed abandoned because the father had failed to file a draft appeal index within the prescribed time under the Family Law Rules 2004 (Cth).
As part of the orders that I made on 17 May 2011 I provided a regime for the filing of written submissions in relation to costs.
On 6 June 2011 the mother filed submissions seeking her costs of the application in an appeal. The amount she sought was $3,654.60 calculated on the Family Law Scale.
On 8 June 2011 the Independent Children’s Lawyer filed submissions also seeking the costs of the application. The Independent Children’s Lawyer sought a total amount of $962.50. This represented the grants of aid to the Independent Children’s Lawyer by the Legal Aid Commission and was not an amount calculated in accordance with the Family Law Scale. As such it is only a contribution to the costs of the Independent Children’s Lawyer.
On 20 June 2011 the father filed responding submissions in effect opposing orders for costs in favour of the mother and the Independent Children’s Lawyer. The father also submitted that the Independent Children’s Lawyer’s application should be dismissed because it was out of time. The relevant order required the submissions of the Independent Children’s Lawyer to be filed on or before 7 June 2011, and the submissions were filed on 8 June 2011.
On 22 June 2011, in the absence of any order permitting further submissions to be filed, the father filed additional submissions in support of his claim that there should be no order for costs.
On 27 June 2011 the mother filed submissions in reply to the father’s submissions, and on the same date the father forwarded to the Registry for filing yet another submission in effect replying to the reply of the mother. Because there was no order permitting it, this submission was not accepted for filing, but it was forwarded to me by the Appeals Registrar to consider whether I would receive the same.
Given the late filing of the submissions of the Independent Children’s Lawyer, the further submissions filed by the father, and the attempt by the father to file a reply, I conducted a directions hearing on 15 August 2011. At that hearing the father, the mother’s counsel and the Independent Children’s Lawyer agreed that I could receive and take into account as appropriate the submissions of the Independent Children’s Lawyer, the further submissions of the father and the father’s Reply. In other words, the father did not require the Independent Children’s Lawyer to obtain an extension of time, and neither Mr Lewis nor Mr Walker required the father to obtain leave to rely on his further submissions or leave to file his Reply. For my part this was a sensible solution to what could have been very difficult issues.
I observe that at the directions hearing Mr Sawer explained that the purpose of his Reply was not to present further submissions in relation to the issue of costs, but to point out the inaccuracy of a submission made by Mr Lewis on behalf of the mother in relation to a business. Unfortunately though it is not possible for me to address an issue such as that on the basis of written submissions. Although the father annexed certain documents to his Reply it is not open for me to receive those documents as evidence without them being the subject of formal proof and even then, to resolve the dispute there would still need to be oral evidence including cross-examination on the topic.

The relevant statutory provisions

As with any application for costs in this jurisdiction the applications are governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”), and that provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 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) 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.
(3)    To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4)    However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
(5)    In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney‑General.

Discussion

The application for costs by the mother

The mother relies on paragraphs (c), (d) and (e) of s 117(2A) as providing circumstances that justify an order for costs. However, there is also a need to take into account the financial circumstances of the parties, and addressing that first, the mother submits that I should take the same approach as Bennett J did in earlier proceedings between the same parties, namely as set out in her reasons for judgment delivered on 12 May 2010. Her Honour made orders for costs against the father in favour of the mother and the Independent Children’s Lawyer despite the father’s submission that he was “unable to pay costs”.
I also observe that the decision of Bennett J, which was the subject of the Notice of Appeal that the father sought be reinstated, also addressed the financial circumstances of the parties in the context of her Honour making an order for costs and for the imposition of a fine.
It is apparent that the financial circumstances of the parties have not changed significantly since her Honour’s reasons for judgment in those two matters; the mother still being employed on a casual basis and having to meet her legal costs, and the father not being in employment, having a number of liabilities, and being supported by his partner and his extended family. However, I need to make my own assessment of how I take into account the parties’ financial circumstances on the evidence that was before me. I will return to this issue later in these reasons.
In terms of paragraph (c) the mother in effect submits that my finding that the appeal was without merit in the context of the father’s application to reinstate the same is relevant “conduct” on the part of the father.
This is a submission that I do not accept. The fact that the father has sought to promote an unmeritorious appeal cannot be “conduct” under paragraph (c) that would justify an order for costs in a proceeding where the father’s application is to reinstate that appeal. The only conduct that is relevant under paragraph (c) would be the father’s conduct in relation to the application in an appeal. In that regard, as I will elaborate on later in these reasons, the fact of the father pursuing the application to reinstate his appeal against the interim parenting orders when final orders were subsequently made, and before the hearing of his application, could very well be considered as a relevant matter to be taken into account under paragraph (g) of s 117(2A). However, that is not the subject of the submission made by the mother.
In relation to paragraph (d) the mother submits that the application to reinstate arose directly from the failure by the father to comply with the order for the filing of a draft appeal index, and that is within that paragraph. Again, I do not accept this submission. The proceedings that were before me were the application in an appeal, and in those proceedings there has not been any failure by the father to comply with any orders.
In terms of paragraph (e) the simple proposition is the father was wholly unsuccessful in the proceedings. Clearly that is the case, and equally clearly that provides a circumstance that justifies an order for costs. Indeed, that is the usual paragraph that is relied on in respect of appeals and applications in appeals, and that is all that is needed to found an order for costs.
The father in his submission filed on 22 June 2011 suggests that although the application was wholly unsuccessful, that does not mean the father’s position was without merit. However, that submission flies in the face of my findings and provides no answer here to the plain facts of the matter.
Thus, given there is a circumstance that justifies an order for costs, the question then becomes whether I should exercise the wide discretion that the Court has and make an order for costs taking into account for example the financial circumstances of the parties.
Here the mother has incurred substantial legal costs in meeting an application by the father which has been wholly unsuccessful. The father’s alleged impecuniosity should not prevent an order for costs being made in these circumstances. The father made the choice to bring the application and he must suffer the consequences of the application being unsuccessful.
The father in his submissions filed on 22 June 2010 sets out his financial circumstances. In summary, he says that he is unemployed, that he has the exclusive care of the three children of the relationship, that he has no income of his own, and he is reliant upon his partner and extended family for financial support. He concedes though that he has a rural property worth approximately $450,000 and that that property is mortgaged to fund developments being undertaken by him and his partner. As I have said, impecuniosity is not a bar to an order for costs being made, but with the father’s financial circumstances it may just be a matter of reorganising his priorities given the significant asset that he owns.
The father also suggests that there are “other matters that are relevant”, presumably under paragraph (g) of s 117(2A). However, the matters referred to relate to the fact that the father says that if he has to pay costs then the burden will fall on his partner, and indeed the children of the relationship, and the child of his relationship with his partner.
These matters may well be accurate, but they do not overcome the circumstance that the father brought an application that was wholly unsuccessful and in meeting that application the mother has had to incur legal costs. Any impact on the partner of the father is irrelevant to that circumstance. That is a matter of how the father and his partner arrange their own affairs.
I also note that the father in his submissions challenges whether the mother has in fact paid her legal costs. In the mother’s submissions in reply she states categorically that those costs have been paid. I am not persuaded by anything the father has said in his submissions that I should not accept that statement, and I do.
As to the quantum of costs, the amounts claimed are certainly in accordance with the Family Law Scale, and I consider that all but one item is appropriate and reasonable. The exception is the counsel fee claimed for the appearance before the Court at the directions hearing held on 8 March 2011.
In all the circumstances I fix the amount of costs to be paid by the father at $3,300.
Before moving to consider the application for costs by the Independent Children’s Lawyer, I want to briefly comment on the submissions of the father beyond what I have already said.
The submissions filed on 20 June 2011 were of little assistance to me. They completely missed the point and were used as a vehicle by the father to continue to pursue matters which are simply not relevant to the decision that I have had to make.
With the submissions filed on 22 June 2011 they were the opposite; they were mostly useful and to the point. They specifically addressed the father’s financial circumstances, which I accept. They also attempt to address the financial circumstances of the mother, but not in a form that I can accept. The claims made do not constitute evidence that I can take into account. In any event, relevantly, I have proceeded on the basis that the mother is working and meeting her legal costs out of her income.
I have referred already to the father’s reply. There he attempted to put information and material before me suggesting that the mother’s submissions in relation to a business known as “A B R” were incorrect. However, to repeat, this was not in a form that I could receive as evidence, and in any event although this was not presented on the issue of costs I observe that the claims by the father do not establish that the financial circumstances of the mother were any different or any better than I have taken into account in any event.
I also observe that the father persists in highlighting that he represents himself, and that that in some way should excuse his presentation. However, it is quite apparent that the father’s partner, who is a legal practitioner, has assisted him in these proceedings, and indeed when one compares his submissions filed on

20 June 2011 with the submissions filed on 22 June 2011 it is perfectly obvious that the father prepared the former and his partner prepared the latter. The father suffers no detriment whatsoever in not having formal legal representation, and indeed it could be said that he benefits because unlike the mother he does not have to pay for his legal advice.

The application for costs by the Independent Children’s Lawyer

The Independent Children’s Lawyer relies on the fact that the father has been wholly unsuccessful in his application as the circumstance justifying an order for costs.
He also relies on the “conduct” of the father in pursuing his application when final parenting orders had been made by Acting Chief Justice Faulks on

10 February 2011, and particularly when those orders were in the father’s favour.
However, this is not entirely correct. As a result of those final orders the issues then realistically left to be considered in the appeal were the orders made by the trial judge imposing a fine and ordering the father to pay costs. At the directions hearing on 8 March 2011 the father indicated in effect that he would not pursue his application if the mother did not seek to enforce the payment of the fine and the order for costs. The mother though, through her counsel, sought to maintain those orders, and on that basis the father insisted on pursuing his application for reinstatement. Thus it seems to me that it is not open to just criticise the father for maintaining his application.
As referred to above though, it would be relevant to go back a step and look at the fact of the father pressing his application at the hearing on 25 August 2010 despite final parenting orders having been made by Bennett J on 24 May 2010. However, that is not the subject of the submission by the Independent Children’s Lawyer.
In any event, as I have said already, it is enough to justify a costs order that the father has been wholly unsuccessful in his application.
The father, in his submissions, suggests that s 117(4)(b) applies, and that an order for costs should not be made because of the financial hardship that he would suffer if he had to bear a proportion of the costs of the Independent Children’s Lawyer. In support of that claim the father suggests the hardship would be visited on his partner. However, that is not relevant here; it is only financial hardship that the party, i.e. the father, suffers that can be taken into account. In that regard the father says that he is “reliant on his partner and extended family for financial support”, that he has no income of his own, that he has the three children of the relationship to provide for, and that they “may miss out on a school trip to Canberra”. He says in effect that all of the children’s expenses are being currently met by his partner who has her own law practice. Significantly though, as also referred to above, the father tells me in his submission that he has “a rural property that is worth something in the vicinity of $450,000”, and that property is “mortgaged to fund developments” being undertaken by him and his partner.

Taking into account all of these matters, I am not satisfied that s 117(4)(b) applies to prevent an order for costs being made in favour of the Independent Children’s Lawyer. For example, it may just be a matter of priorities, and how he has ordered his affairs, but prima facie money could be directed from the “developments” to meet an order for costs.
Finally, the father seems to be suggesting that costs should not be awarded to the Independent Children’s Lawyer because he “has been ineffectual and has not contributed to the case in any meaningful (way)”. Further, he suggests that once the only issues on appeal became the fine and the costs the Independent Children’s Lawyer should have “stepped aside”. In relation to the latter issue, the ultimate issues on appeal only became apparent at the directions hearing on 8 March 2011, and at that time the Independent Children’s Lawyer indicated he had no submissions to make on those topics. In relation to the former, for so long as the father was looking to reinstate the appeal against the interim parenting orders it was necessary for the Independent Children’s Lawyer to take a part in the proceedings.
Thus, I propose to order that the father pay the costs of the Independent Children’s Lawyer as sought.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 16 August 2011.

Associate:

Date: 16 August 2011