STATIVA & STATIVA
[2017] FamCAFC 75
•28 April 2017
FAMILY COURT OF AUSTRALIA
| STATIVA & STATIVA | [2017] FamCAFC 75 |
| FAMILY LAW – APPEAL – CHILDREN – Where the appellant requires leave to appeal – Where the basis for leave being granted was no different from the grounds of appeal relied on by the appellant and thus the matter was conducted on the basis of whether there was merit in the complaints made by the appellant – Where the complaints made by the appellant are misconceived – Where there is no merit in the appeal – Appeal dismissed. FAMILY LAW – APPEAL – INDEMNITY COSTS – Where the respondent seeks her costs calculated on an indemnity basis – Where the respondent filed an affidavit annexing the relevant costs agreements – Where the appellant filed no written submissions – Where an order for costs should be made – Where there can be no doubt that the circumstances here are such that they warrant a departure from the ordinary rule and the awarding of indemnity costs – Where the respondent should not bear any of her legal costs incurred in responding to an appeal which was doomed to fail from the outset – Costs ordered in favour of the respondent to be calculated on an indemnity basis. |
| |||
| APPELLANT: | Mr Stativa | ||
| RESPONDENT: | Ms Stativa |
| FILE NUMBER: | MLC | 9079 | of | 2009 |
| APPEAL NUMBER: | SOA | 36 | of | 2016 |
| DATE DELIVERED: | 28 April 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
JUDGMENT OF: | Strickland J |
| HEARING DATE: | 6 October 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 April 2016 |
| LOWER COURT MNC: | NA - Transcript only |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Werner |
| SOLICITOR FOR THE RESPONDENT: | Taussig Cherrie Fildes |
Orders made 6 October 2016
The Notice of Appeal filed on 29 April 2016 be dismissed.
The question of costs be reserved.
Within fourteen [14] days of the date of this order the
appellant*respondent file and serve copies of the costs agreements relied upon for the purposes of the application for costs to be calculated on an indemnity basis.Within fourteen [14] days of the receipt of the costs agreements, if so advised, the
respondent*appellant file and serve written submissions in relation to the question of costs being calculated on an indemnity basis.Within seven [7] days of the receipt of any written submissions filed and served by the
respondent*appellant, the *respondentappellantfile and serve any written submissions in reply.
*Pursuant to Rule 17.02 of the Family Law Rules, order amended on 12 October 2016
Orders made 28 April 2017
The appeal be dismissed.
The father pay the costs of the mother of and incidental to the appeal, such costs to be assessed on an indemnity basis in default of agreement
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stativa & Stativa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 36 of 2016
File Number: MLC 9079 of 2009
| Mr Stativa |
Appellant
And
| Ms Stativa |
Respondent
REASONS FOR JUDGMENT
Introduction
On 29 April 2016 Mr Stativa (“the father”) filed a Notice of Appeal against two orders (2 and 3) made by Judge McGuire on 11 April 2016. Ms Stativa (“the mother”) opposed the appeal.
On 11 August 2016 the father advised the court that he was not proceeding with his appeal against order 2, and an order was made dismissing that aspect of the appeal.
The appeal against order 3 was heard by this court on 6 October 2016 and the appeal was dismissed. However, I was unable to provide my reasons for judgment at that time, and I indicated that I would provide them subsequently. These are my reasons.
Order 3 was made in the context of long-running parenting proceedings commenced in 2009 between the mother and the father in relation to their daughter X (“the child”) born in 2008. Specifically, the order was made at a time leading up to yet another final hearing in the matter. The order provided as follows:
The father for the purposes of obtaining a forensic critique of the Family Report of Dr [N] under affidavit of 18 February 2016 be enabled to provide copies of all Family Reports prepared by Dr [N] and the report of Ms [K] to the psychiatrist or psychologist of his choice for that purpose only and that psychiatrist or psychologist be and is hereby restrained from providing such Family Reports to any other person including any other professional.
That order was made as a result of an Application in a Case filed by the father on 18 February 2016 in which he sought the following orders:
1.To have the final hearing date vacated currently listed for 21 April 2016 to a later date to allow time for further report from Dr [A] – Psychologist to be filed with the court.
2.To have Dr [A] provide a final Family Report where applicant and ICL fail to inform the court that their requested report writer has refused to accommodate respondent for a scheduled appointment to be observed to interact with the child and to be interviewed and will not be in a position to provide a complete Family Report.
3.To have appointment made urgently before the next return court hearing date to provide a complete final Family Report.
4.To allow respondent to collect child for appointment with Dr [A] to be interviewed and observed to interact with child to provide a complete Family Report or to have the parties attend upon Dr [A] to prepare final Family Report for court.
5.To allow child to continue visitation arrangements with respondent to allow child to resume and continue her attendance at language school and scouts.
There had been final parenting orders made on 11 July 2014 which provided for the mother to have sole parental responsibility for the child, and that the child live with the mother. However, there were also interim orders made for the child to spend time with the father until further order on alternate weekends. Those orders also provided for the parents and the child to undertake therapy as arranged by the Independent Children’s Lawyer (“the ICL”), and for “an addendum family report” to be provided by Dr N, clinical psychologist, with interviews for that purpose to not take place prior to 1 February 2015.
Dr N had previously provided reports to the court dated 7 January 2011 and 29 April 2013, and she gave evidence at the hearing.
The father appealed against these orders, but that appeal was dismissed on 8 September 2015. One of the grounds of appeal was that the trial judge had erred in relying on the family report prepared by Dr N. In considering that ground the Full Court recorded this at [26]:
It is clear and indeed uncontroversial that the father objected to the appointment of Dr [N] as the expert to interview the parties and prepare a report for the court. It is also uncontroversial that he made the trial judge aware of his objections and, further, urged his Honour to appoint another expert. His Honour appointed Dr [N]. The father refused to attend any appointments with Dr [N].
The father had contended that the judge was “biased” against him for making the order, that Dr N was “biased” and that the judge and the ICL attempted to “railroad” him “into being interviewed by Dr [N] who would then make a damaging report about him”. In relation to this contention the Full Court found that the assertions were “both speculative and unfounded”, and “[t]he father was unable to point to any evidence or matter before [the trial judge] which supported [those] assertions” [28]. The Full Court found no merit in this ground of appeal.
Despite this, on 15 October 2015 the father filed an Application in a Case wherein he sought the following orders:
1.To have the final hearing date vacated currently listed for 12 November 2015 to a later date to allow time for further report from Dr [A] – Psychologist to be filed with the court.
2. To have Dr [A] provide a final Family Report.
3.To have the parties attend upon Dr [A] on a date already booked for 24 Nov. 2015 to prepare final Family Report for the court.
His Honour dealt with that application on 12 November 2015 and relevantly ordered as follows:
1 The trial date of 12 November 2015 be vacated.
2The matter be adjourned for further hearing on 21 April 2016 at 10.00 am at Melbourne (with an estimated hearing time of two days).
3Pursuant to Section 62G(2) of the Family Law Act 1975, the parties and the child … born [in] 2008 attend upon a Dr [N] for the purposes of the preparation of an addendum family report on dates to be advised by the Independent Children’s Lawyer to be made available to the Court and the parties, such report to be paid for by the father and mother in equal shares.
4Not later than 4.00pm Monday, 16 November 2015 the father deposit the sum of $3,100.00 into the Trust account of Taussig Cherrie Fildes Solicitors, Level 3, 530 Lonsdale Street Melbourne 3000, being payment by the father for one half of the costs for the preparation and provision of the addendum report.
…
On 9 December 2015 Dr N sent a letter to the parties pursuant to the orders made on 11 July 2014 and 12 November 2015, making arrangements for the parties and the child to be interviewed at her offices on 29 January 2016.
For completeness, I note that the family therapy also ordered on 11 July 2015 did not take place because the father was dissatisfied with the therapists proposed by the ICL.
On 29 January 2016 the mother and her partner attended with the child and they were interviewed by Dr N. The father also attended, but with a person he described as a “witness”.
However, the proposed interview with the father did not take place, and there is a factual dispute between Dr N and the father as to why that was the case. It is not relevant to this appeal, and in any event, it is not possible for this court to make any findings in relation to the same, but for completeness I summarise that factual dispute as follows. Dr N says in her family report dated 15 February 2016 that “the decision making and behaviour [the father] displayed on the day meant [the appointments] did not proceed as planned.” Because of his aggressive behaviour and his refusal to leave, Dr N called the police and the police escorted him out of her office. On the other hand, the father, supported by his witness, contends that it was Dr N who became aggressive and demanded that he leave her office. He says that she refused to tell him whether she intended to keep the appointment, but when the police arrived she told them that she had cancelled the appointment, and he then left.
Dr N prepared a report dated 15 February 2016 as to the interviews with the mother, her partner, and the child, and her interchange with the father. In respect of the latter Dr N said this at page 2 of her report:
… While I could not proceed with a full assessment of [the father] as I had hoped, the information obtained by his actions showed much about his personality style, the deficits in his parenting capacity and judgement and the effects of his behaviour on [the child] such that allowed conclusions to be drawn and recommendations made.
The appeal
Although leave to appeal is required here, and the father set out a basis for leave being granted, that basis was no different than the grounds of appeal relied upon by the father if leave was granted. Accordingly, the matter was conducted on the basis of whether there was any merit in the complaints that the father made.
Helpfully, in his written summary of argument, the mother’s counsel identified that from the matters relied on for the purposes of leave to appeal, and the grounds of appeal, the father raised “four separate and distinct complaints about the judicial process”. I agree with what counsel says in that regard, and I propose to determine this appeal by addressing those four complaints. They are as follows:
a)In refusing the [Father’s] application, the learned trial judge relied on a purported family report prepared by Dr [N] dated 15 February 2016 (the 2016 Family Report) which is not, in fact and/or in law, a family report.
b)The author of the 2016 Family Report, Dr [N], is biased against the [Father].
c)The learned trial judge erred in refusing the [father’s] application for an order that the parties and the Child […] attend upon another, different family consultant for the preparation of a further family report.
d)The learned trial judge’s conduct of the application under appeal and/or his Honour’s reasons [were] infected with actual bias.
(Footnotes omitted)
(Emphasis as per original)
a) In refusing the [Father’s] application, the learned trial judge relied on a purported family report prepared by Dr [N] dated 15 February 2016 (the 2016 Family Report) which is not, in fact and/or in law, a family report.
This complaint is misconceived. There is no question that the report can be described as a “family report” prepared pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”), and that it was provided to the court by Dr N pursuant to the orders made on 11 July 2014 and 12 November 2015.
It is also not correct to say that the trial judge has relied on this report. It has not yet been admitted into evidence; that will be addressed at the time of the trial, and at that time the father may take such objection to the admission of the report as he considers appropriate. Further, even if the report is admitted into evidence, the father then has the opportunity to cross-examine Dr N as to the contents of the report.
In these circumstances this is a complaint without merit, and does not demonstrate any error by the trial judge.
b) The author of the 2016 Family Report, Dr [N], is biased against the [Father].
This is also a complaint that is misconceived. To suggest that Dr N is biased does not demonstrate error by the trial judge in making the order that he did.
Further, even if the father’s argument is reframed to allege that the trial judge erred in failing to find that Dr N was biased, and thus there should be another family report ordered, that still does not assist the father. To succeed on that basis the father would have to point to evidence that demonstrated bias on the part of Dr N, but there is nothing in the record which satisfies that requirement. Indeed, as his Honour pointed out in the transcript of the hearing which doubles as his reasons for judgment, the only person who suggests Dr N is biased, is the father (for example, see Transcript 11 April 2016, page 12, lines 9 – 16).
His Honour referred to the circumstance that previously the father alleged that Dr N was biased and wanted her removed, but his Honour refused that application, and as referred to above, the Full Court found no error on his part in that regard. Moreover, as can be seen from the applications made by the father, on 15 October 2015 he sought an order for another expert to undertake the report, but his Honour refused that application, ordering that Dr N undertake the addendum report. Again, no error has been demonstrated by the father in relation to that order.
There is no merit in this complaint.
c) The learned trial judge erred in refusing the [father’s] application for an order that the parties and the Child […] attend upon another, different family consultant for the preparation of a further family report.
I agree with the submission of the mother’s counsel that it was well open to the trial judge to refuse the father‘s application and make order 3.
There would appear to be three bases for that outcome, namely:
a)The child’s best interests.
b)Case management considerations.
c)The lack of an evidentiary basis for finding that Dr N was biased against the father.
The child’s best interests
There had been three previous occasions on which the child, who was not yet eight years of age, had been required to attend for interviews with an expert for the purposes of the proceedings, and his Honour was understandably and appropriately concerned at the impact on the child, not only of being reinterviewed, but also of the ongoing dispute between the parties (Transcript 11 April 2016, page 15, line 38 – page 16, line 5).
It is also readily apparent from that exchange with the father that he had no concept of the impact on the child of being reinterviewed and of the ongoing dispute between the parties. All the father seemed to be concerned about was “fairness” to him, without regard for the child.
Case management considerations
It is convenient here to adopt the written summary of counsel for the mother as follows:
13.The Court has a statutory duty to ensure that proceedings before it are not protracted [s 42 Federal Circuit Court Act 1999 (Cth)].
14. As a matter of case management:
a) The proceeding had been on foot since 31 December 2012.
b)The first phase of the trial – which culminated in the interim parenting orders of 14 July 2014 – occupied seven sitting days spread over six months.
c)The interim parenting orders were made notwithstanding clear expert evidence and factual findings to the effect that the [Father] posed a risk to [the child’s] long term mental health and emotional wellbeing.
d)The Interim Orders were made specifically, and expressly, on the premise that the [Father] would participate in family therapy with a view to correcting the deficits in his parenting capacity, and a further family report would be prepared thereafter. As at the date of the [Father’s] Application, it was common ground that no such family therapy had taken place, and nor would it.
e)The Interim Orders were made specifically, and expressly, on the premise that the proceeding would come back before his Honour in around nine months for a final determination of what relationship (if any) [the child] should have with her father, consistent with her best interests.
f)The proceeding before his Honour essentially went into abeyance pending the determination of an appeal against the interim parenting orders.
g)His Honour had listed the final trial fixture for 21 April 2016.
15.In the circumstances, it was appropriate, if not paramount, that there be no further delays.
(Footnotes omitted)
As it transpired, his Honour had to vacate the listing on 21 April 2016 because of his unexpected unavailability, but his Honour ordered that the matter be relisted for hearing (with priority) at the earliest possible date (order 2).
The lack of an evidentiary basis for finding that Dr N was biased against the father
I have already addressed the issue of Dr N’s alleged bias, and I need not repeat that here.
Two further bases for his Honour’s orders were identified by the mother’s counsel in his written submissions, and again it is convenient to set them out in full as follows:
18.It was common ground at the first phase of the trial, and his Honour expressly found, that [the child] had a good relationship with her father. To the extent that, at the final hearing, the Court is deprived of the benefit (if any) of professional observations of face to face interaction between [the child] and her father, it cannot be contended on appeal that this information would be of any material assistance.
19.Further, to the extent that the [Father] considers himself prejudiced by the absence of evidence of this nature – and any such prejudice is denied on the part of the [Mother] – he has only himself to blame. Relevantly:
a)On 18 January 2013, his Honour ordered the parties to attend upon Dr [N] for a family report.
b)The [Father] refused to attend upon Dr [N] in breach of his Honour’s orders and Dr [N] prepared a family report without the benefit of observing the [Father’s] interaction with [the child].
c)No objection was taken by the [Father] to the admissibility of Dr [N’s] report at trial.
d)The events which took place at Dr [N’s] rooms on 30 January 2016 are tolerably clear from the 2016 Family Report, the affidavit which the [Father] filed in support of his application and the Transcript.
(Footnotes omitted)
I agree with those submissions.
There is again no merit in this complaint.
d) The learned trial judge’s conduct of the application under appeal and/or his Honour’s reasons [were] infected with actual bias.
As framed by the father, this complaint is of actual bias by his Honour rather than of apprehended bias. However, it matters not which it is, because it is not open to a litigant to appeal on either basis where, as here, no bias objection is taken at the hearing (Vakauta v Kelly (1989) 167 CLR 568).
In any event, this complaint must fail, given that, in which way the trial judge is said to have exhibited bias is not even identified by the father, far less demonstrated.
There is again no merit in this complaint.
Conclusion
Having found no merit in any of the complaints raised by the father, there is strictly no basis to give leave to appeal, let alone to allow the appeal. However, as referred to earlier, given the way that the matter was conducted, I will skip over the issue of leave and simply dismiss the appeal.
Costs
At the hearing of this appeal the mother made an application for costs, and for those costs to be calculated on an indemnity basis. That application was opposed by the father, and as a result I heard submissions from the parties in relation to that application and made the following orders:
…
2. The question of costs be reserved.
3.Within fourteen [14] days of the date of this order the
appellant*respondent file and serve copies of the costs agreements relied upon for the purposes of the application for costs to be calculated on an indemnity basis.4.Within fourteen [14] days of the receipt of the costs agreements, if so advised, the
respondent*appellant file and serve written submissions in relation to the question of costs being calculated on an indemnity basis.5.Within seven [7] days of the receipt of any written submissions filed and served by the
respondent*appellant, the *respondentappellantfile and serve any written submissions in reply.*Pursuant to Rule 17.02 of the Family Law Rules, order amended on 12 October 2016
In compliance with those orders, on 20 October 2016 the mother filed an affidavit annexing the relevant costs agreements. However, the father did not file any written submissions, and thus the mother did not file any submissions in reply.
The first issue is whether there should be an order for costs at all, and that is easily dealt with. Section 117(1) of the Act provides that each party should bear their own costs, but s 117(2) provides that an order for costs can be made if there are circumstances that justify that result. For that purpose regard can be had to the factors set out in s 117(2A), and of relevance here is paragraph (e), namely whether any party to the proceedings has been wholly unsuccessful in the proceedings. Plainly that applies to the father in relation to this appeal, and accordingly I have no hesitation in finding that an order for costs should be made.
I note that the father suggested that although he was unsuccessful, he raised valid points on appeal. However, I reject that submission; none of the complaints made by the father had any validity whatsoever.
Turning then to the question of how the costs should be calculated, namely on a party/party basis or on an indemnity basis.
A useful discussion of the question of indemnity costs is to be found in the decision of the Full Court in D & D (Costs) (No 2) (2010) FLC 93-435. There the Full Court reviewed extensively earlier authorities including Limousin & Limousin (Costs) [2007] 38 FamLR 478 and Kohan and Kohan (1993) FLC 92-340, and also Sheppard J’s decision in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248.
The ordinary rule is that an order for costs is calculated on a party/party basis, and it emerges from the authorities referred to above that to depart from that rule, exceptional circumstances need to be demonstrated.
As to what might constitute an exceptional circumstance, reference can be made to the oft-cited decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd where his Honour detailed circumstances that might qualify. Usefully, Chief Judge Holden in Munday v Bowman (1997) FLC 92-784 at 84,660, drew from the decision of Sheppard J the following examples:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud.
(c)Evidence of particular misconduct causing loss of time to the court and to other parties.
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.
(e)An imprudent refusal of an offer to compromise.
(Footnotes omitted)
Here, the mother in effect submits that the circumstances of this case fit within (a) and (d). She says that properly advised the father could not have thought that he would succeed in the appeal. Further, the father again made groundless allegations of bias against the trial judge, despite the Full Court previously rejecting similar allegations.
There can be no doubt that these circumstances are such that they warrant a departure from the ordinary rule and the awarding of indemnity costs.
However, that is not the end of the matter. Costs are always in the discretion of the court, and the existence of exceptional circumstances as described above does not oblige the court to make an order for indemnity costs. The relevant factors in the exercise of that discretion are again the matters arising under s 117(2A) of the Act, as well as the terms of any costs agreement between the party seeking the order and his or her legal representatives (Kohan & Kohan at 79,611).
Here, although the costs agreements filed pursuant to r 19.08(3) of the Family Law Rules 2004 (Cth) (“the Rules”) provide for an hourly rate significantly higher than that provided for in Schedule 3 to the Rules, I am not persuaded that that fact alone militates against the making of an order for indemnity costs, when weighed with all of the other factors referred to above.
The plain fact of the matter is that the mother should not have to bear any of the legal costs incurred by her in responding to an appeal which was doomed to fail from the outset. Thus, there will be an order for costs to be calculated on an indemnity basis.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the
reasons for judgment of the Honourable Justice Strickland delivered on 28 April 2017.
Associate:
Date: 28 April 2017
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