Szalai & Szalai
[2024] FedCFamC1A 28
•13 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Szalai & Szalai [2024] FedCFamC1A 28
Appeal from: Szalai & Szalai (No 2) [2023] FedCFamC2F 1709 Appeal number: NAA 355 of 2023 File number: DNC 45 of 2023 Judgment of: AUSTIN J Date of judgment: 13 March 2024 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision that he pay costs of the Independent Children’s Lawyer (“ICL”) incidental to his previous unsuccessful application in an appeal – Where the ICL opposed the review application – Consideration of s 117(4)(b) of the Family Law Act 1975 (Cth) – Where the Court finds the applicant would suffer financial hardship if required to bear any proportion of the ICL’s costs – Where the applicant is in debt – Where the applicant was recently hospitalised due to a motor accident – Where the review application succeeds – Where the ICL’s application for costs against the applicant is dismissed – Where the appeal registrar’s order requiring the applicant to pay the ICL’s costs is discharged. Legislation: Family Law Act 1975 (Cth) Pt VII, s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38
Cases cited: Leigh & Calpin [2023] FedCFamC1A 220 Number of paragraphs: 16 Date of hearing: 13 March 2024 Place: Newcastle (via Microsoft Teams) The Applicant: Litigant in person (did not participate) Solicitor for the Respondent: Duggan Family Lawyers Solicitor for the Independent Children's Lawyer: AFL Withnalls Lawyers ORDERS
NAA 355 of 2023
DNC 45 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SZALAI
Applicant
AND: MS SZALAI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
13 MARCH 2024
THE COURT ORDERS THAT:
1.Order 2 made on 14 February 2024 by the appeal registrar is discharged.
2.The application for costs made by the Independent Children’s Lawyer against the respondent father is dismissed.
3.The Application for Review filed by the respondent father on 29 February 2024 is otherwise dismissed.
4.The Response to an Application in an Appeal filed by the Independent Children’s Lawyer on 8 March 2024 is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Szalai & Szalai has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These reasons explain the grant of an application to review a single order made by the appeal registrar on 14 February 2024.
Background
On 8 September 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) to finalise a cause of action between the parties in respect of their children.
The time limit for any appeal from those orders expired on 6 October 2023.
On 21 December 2023, the applicant applied for an extension of time within which to appeal, but the application was dismissed by the appeal registrar on 14 February 2024. In addition to dismissing the extension application, the appeal registrar ordered the applicant to pay costs of $500 to the Independent Children’s Lawyer (“the ICL”).
On 29 February 2024, the applicant filed an application to review only the costs order. No issue is taken with the refusal to extend time within which the applicant could appeal from the orders made in September 2023.
Review
The review application entails the de novo hearing of the ICL’s application for costs arising out of the dismissal of the applicant’s application to extend time within which to appeal.
The applicant indicated that he wanted the review application determined in the parties’ absence in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), but the review application was instead listed for hearing in open court to ensure the applicant was afforded every opportunity to vindicate his review application. He informed the Court he would not attend the hearing and did not.
The ICL appeared to oppose the review application and to renew her costs application, but only for the sum of $500 as ordered by the registrar – not for the greater amount of $2,030 she originally sought. She abandoned her application for her costs of the review hearing.
The applicant relies upon his affidavit filed on 29 February 2024 as evidence in support of the review application. The affidavit establishes that he owes a bank credit card debt of $32,573.27. Although the applicant alleges he suffers financial hardship, there is no other direct evidence of his income, assets and liabilities.
The appeal registrar said this in relation to the costs decision:
63.The [ICL] seeks that the [applicant] pay their costs of ‘$1980 on account of legal work and $50 on account of disbursements’ detailed in a schedule of the costs filed 12 February 2024.
64.The [applicant] opposes any order for costs and submits the [ICL] should not be a party to the proceedings. This is not a valid submission.
65.The [applicant] also submits that has debts and cannot afford to pay an order for costs.
…
68.The [applicant] has been wholly unsuccessful in this application and the [ICL] has been put to cost responding to the unsuccessful application.
69.I also take into consideration that the [ICL] is funded by the legal aid authority through Commonwealth funding.
70.There is little evidence of the financial position of the [applicant]. The [applicant] submits that he is working but has debts he is trying to pay.
…
72.I am satisfied there are justifying circumstances for making an order for costs.
73.I am satisfied the costs are sought within the relevant scale. …
…
76.Having regard to the scale of costs prescribed by the Rules, and the matters detailed above, I consider it appropriate to order payment of costs fixed at $500.
77.No time for payment was addressed in submissions. I consider a period of three months is appropriate.
The ICL urged the correctness of those findings and observations.
In Leigh & Calpin [2023] FedCFamC1A 220, the Full Court recently said this:
9.The costs of the parties and the ICL in the appeal are governed by the provisions of s 117 of [the Act].
10.Ordinarily, the parties bear their own costs of the appeal (s 117(1)), but the Court may order the payment of costs (s 117(2)), subject to consideration of several material factors (s 117(2A)).
11.The costs of the ICL abide different considerations (ss 117(3), 117(4) and 117(5)).
…
17.The ICL participates in the litigation, performing special functions and occupying a unique position, but is not a party to the proceeding (Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 207 and 225–226). Hence, the provisions of s 117(1), which only apply to “parties”, does not create the same starting presumption for ICL’s costs as applies in respect of the parties.
18.The duty of the ICL in an original proceeding carries over to any appellate proceeding (CDJ v VAJ (No 2) (1998) 159 ALR 138 at [3]).
19.The ICL was funded in the appeal by a grant of legal aid, but the Court is mandated to disregard such legal aid funding when determining the costs application (s 117(5)), which obligation has been interpreted to mean the ICL should be presumed to be unfunded so as to incline the Court to order the parties’ contribution to the ICL’s costs (De Roma & De Roma (2013) 49 Fam LR 226 at [2]–[3], [39]–[52] and [54]; Gahen & Gahen (No 2) [2013] FamCA 936 at [8]–[10]; PJ and NW [2005] FamCA 162 at [66]; LAC & TRF & LKL (2005) 33 Fam LR 123 at [61]–[63]).
Significantly for present purposes, s 117(4)(b) of the Act rises to prominence, providing:
117 Costs
…
(4)However, in proceedings in which an [ICL] for a child has been appointed, if:
…
(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 [ICL];
the court must not make an order under subsection (2) against that party in relation to the costs of the [ICL].
(Emphasis added)
Just as the appeal registrar found (at [70]), there is little evidence as to the applicant’s financial position, but I infer from the relatively little evidence which is available that he would suffer financial hardship if required to bear any proportion of the ICL’s costs. That inference arises from his substantial credit card debt, his injury and hospitalisation due to a motor accident, and his status as a self-represented litigant before the primary judge in September 2023, before the appeal registrar in February 2024, and in respect of this review hearing.
The engagement of s 117(4)(b) of the Act stands as a bulwark against any costs order in the ICL’s favour, even though other considerations might justify a costs order.
The review application succeeds, the ICL’s application for costs against the applicant is dismissed, and Order 2 made on 14 February 2024 is discharged.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 14 March 2024
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