SPRING & SPRING
[2014] FamCAFC 178
•9 September 2014
FAMILY COURT OF AUSTRALIA
| SPRING & SPRING | [2014] FamCAFC 178 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where the draft Notice of Appeal does not contain proper grounds of appeal – where the application cannot succeed in those circumstances – where an adjournment is sought by the applicant to prepare a fresh draft Notice of Appeal containing proper grounds of appeal – where that application is opposed – application to adjourn granted. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks her costs of the hearing thrown away – where there are circumstances which justify an order for costs being made – costs ordered as sought by the respondent. |
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| APPLICANT: | Mr Spring | ||
| RESPONDENT: | Ms Spring |
| FILE NUMBER: | MLC | 3664 | of | 2013 |
| APPEAL NUMBER: | SOA | 44 | of | 2014 |
| DATE DELIVERED: | 9 September 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 9 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 May 2014 |
| LOWER COURT MNC: | [2014] FCCA 970 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Wilson |
| SOLICITOR FOR THE RESPONDENT: | Taussig Cherrie Fildes |
Orders
The application in an appeal filed by the husband on 21 July 2014 be adjourned for hearing before the Honourable Justice Strickland in Melbourne at 10:00am on Tuesday 18 November 2014.
The husband if so advised file and serve a fresh application in an appeal supported by an affidavit and a draft Notice of Appeal seeking an extension of time to appeal against the orders made on 23 May 2014 and an application in an appeal supported by an affidavit and a draft Notice of Appeal seeking an extension of time to appeal against the orders made on 27 June 2013, such applications and supporting documents to be filed and served by the close of business on Tuesday 21 October 2014.
The husband pay the wife’s costs thrown away today in the total sum of $3,824 such costs to be paid on or before 17 November 2014.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spring & Spring 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 44 of 2014
File Number: MLC 3664 of 2013
| Mr Spring |
Applicant
And
| Ms Spring |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
I have before me an application in an appeal filed by Mr Spring (“the husband”) on 21 July 2014 in which he seeks an extension of time to file a Notice of Appeal against orders made by Judge Riethmuller on 23 May 2014. Two orders were made by his Honour on 23 May 2014 namely, that the husband’s s 79A application pursued in his Response filed on 4 February 2014 be dismissed, and the wife’s enforcement application be listed for hearing on
8 August 2014.
The application is supported by an affidavit of the husband also filed on
21 July 2014, together with a draft Notice of Appeal.
The application is opposed by Ms Spring (“the wife”).
On 3 September 2014 the wife filed an application in an appeal supported by an affidavit. In that application the wife sought dismissal of the husband’s application in an appeal and “the Notice of Appeal”. Pausing there, there can be no basis to dismiss the “Notice of Appeal”, because no such Notice is before the court; there is merely a proposed Notice if an extension of time is granted. The application also sought security for costs in relation to the application. However, as Mr Wilson has now explained to me, that is incorrect, and what is in fact sought is security in relation to the appeal, obviously only in the event that there is an appeal that is to proceed, and as is also obvious, that can only occur if the extension of time sought by the husband is granted.
When the hearing commenced the husband sought to tender a further application in an appeal, together with an affidavit and a draft Notice of Appeal. Although Mr Wilson did not oppose this court receiving those documents, in the end result I determined to return those documents to the husband.
That application in an appeal sought an extension of time to file an appeal against orders made on 27 June 2013, and in my view raised matters beyond those that would be considered in relation to the application that is before me today. On that basis I indicated to the husband that I was not prepared to deal with that application if I received it today, and I gave him the option of returning the documents for him to file and serve in the usual way, and to be given a listing on another day, or to pursue his tender of them, but then have the application adjourned. The husband chose the former, and to repeat, I have returned the documents to him.
That led to discussion between bench and bar in relation initially to the wife’s application in an appeal, but I do not need to say anything more about that. More importantly, I raised with the husband an obvious difficulty with his application before the court today namely, in his draft Notice of Appeal he set out three grounds of appeal which in no sense could be considered proper grounds of appeal. They were mere assertions; for example, Ground 1 reads “[t]he Judge erred in finding that s79A(1)(a) did not apply”. In those circumstances I informed the husband that one of the most relevant factors to be taken into account in determining the success or otherwise of his application seeking an extension of time, is the merits of the appeal which he would wish to pursue. Obviously, if there are no proper grounds of appeal in the draft Notice of Appeal, then there can be no merit in the appeal. Thus, as it stood his application for an extension of time would almost certainly fail. Indeed if for some reason it was successful and the husband was able to pursue the appeal in terms of the draft Notice of Appeal, I would have expected there to be an application to summarily dismiss that Notice of Appeal given the absence of proper grounds of appeal, and that application would be successful.
Faced with that dilemma the husband has made an application to adjourn his application today to enable him to engage a solicitor to better prepare his documents, and specifically the draft Notice of Appeal. Such an adjournment would also enable him to file and serve the application in an appeal which he sought to tender today, allowing that application to be heard at the same time as the application in an appeal that is currently before the court.
The application for adjournment is opposed by the wife.
I enquired of the husband what period of time he would want an adjournment for, if one was granted, and he said he needed eight weeks to get things done.
In response to that discrete issue counsel for the wife informed me that there was no specific objection to that timeframe, given the personal circumstances of his client. I do not need to go into those circumstances, but in summary,
Mr Wilson said that if there was to be an adjournment it should either be to a date prior to 22 October 2014, or to a date after 12 November 2014.
The primary reason for the objection by Mr Wilson to the adjournment application is in effect that the husband has now had at least two opportunities to prepare Notices of Appeal containing proper grounds of appeal, and there is no guarantee that if he is given another opportunity he will get it right. What apparently occurred is that early in July 2014, the husband sought to file two applications in an appeal seeking various orders in relation to proposed appeals against the orders of 23 May 2014 and 27 June 2013. In support of those applications there were affidavits and draft Notices of Appeal presented. However, those documents were rejected by the court, including because the grounds of appeal were inadequate.
Although I have some sympathy for that submission I propose to grant the adjournment. The husband has been without legal representation and it is apparent that he has made an effort to prepare and file the necessary documents. He tells me though that he will engage a lawyer to prepare the draft Notices of Appeal if the proceedings are adjourned.
This will be the last opportunity that the husband will have to present proper documents. I obviously cannot be completely definitive about that though because there may be circumstances that arise which change that view, but as I sit here today that is the position.
Given that outcome, I now have before me an application on behalf of the wife seeking an order that the husband pay her costs thrown away today.
Any application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”), ss (1) of which effectively provides that each party is to bear their own costs, but ss (2) of which effectively provides that that is subject to there being no circumstance justifying an order for costs, or put the other way, if there are circumstances that justify an order for costs then an order for costs can be made. Sub-section (2A) then sets out the factors relevant to whether an order for costs should be made, and if so, what the amount should be.
What is relevant here is that the husband’s application in an appeal was set for hearing today, and the wife’s legal representatives have attended clearly at significant cost to the wife. However, the husband has made an application to adjourn the hearing, which has been successful. Further, it has been adjourned because of the husband’s failure to present a draft Notice of Appeal which contained proper grounds of appeal. Without such a document his application simply could not succeed and it was only when that was pointed out to the husband that he sought the adjournment.
Thus, there are clearly circumstances here that justify an order for costs being made.
I specifically asked the husband about his financial circumstances and I have heard submissions from Mr Wilson about that as well. I raised that because one of the factors that I have to have regard to in considering whether to order costs, and if so what order that should be, is the financial circumstances of the parties.
The husband from the bar table has informed me that his income is $11,000 per month, that he has no assets, and that he owes $60,000.
Mr Wilson has properly taken me to a Financial Statement filed by the husband in February 2014, which in a sense confirms his monthly income, if it is understood that the $11,000 per month is net of tax. Apart from that there is a difference between what the husband tells me today about his financial circumstances and what appears in that document of February 2014, but that could easily be explained by the passage of time between February and now. In any event, that Financial Statement indicated that the husband had property to the value of $64,000, and liabilities to the extent of $277,500.
My assessment of those financial circumstances is that they do not provide a basis for, or a reason why, there should not be an order for costs made today. To repeat, there are circumstances here that justify an order for costs being made, and although the financial circumstances are relevant, if there are other circumstances that justify an order for costs then even impecuniosity cannot, and should not, be a bar to an order for costs being made.
Thus, I propose to make an order for costs.
As to the amount, the wife seeks a total of $3,824 comprising both solicitor and counsel fees thrown away today. In my view that appears to be reasonable and accordingly I will make an order for costs to be paid in that amount.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 9 September 2014.
Associate:
Date: 16 September 2014
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