TALINES & KNOWLES

[2015] FCCA 1660

FEDERAL CIRCUIT COURT OF AUSTRALIA

TALINES & KNOWLES [2015] FCCA 1660

Catchwords:
FAMILY LAW – Children – application for parenting orders.

PRACTICE AND PROCEDURE – Application to re-open case – where respondent seeks to make further submissions – whether application to make further submissions an application to re-open case – where respondent no longer represented – procedural fairness.

COSTS – Costs of the day – where application to re-open made on the day where substantive application listed for decision – conduct of party to proceedings in relation to the proceedings.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001, Sch.1, Part 1

Applicant: MS TALINES

Respondent: MR KNOWLES

File Number: SYC 1426 of 2015

Judgment of: Judge Scarlett

Hearing date: 17 June 2015

Date of Last Submission: 17 June 2015

Delivered at: Sydney

Delivered on: 17 June 2015

REPRESENTATION

Solicitor for the Applicant: Mr Davies (by leave)

Solicitors for the Applicant: G & D Lawyers

Respondent: In person

Independent Children's Lawyer: Mrs Court

Solicitors for the Independent Children's Lawyer: John Spence & Associates

ORDERS

1. The application by the Respondent to re-open the proceedings is granted.

2. The Application will be listed for hearing at 10:00 am on Thursday 18 June 2015 for the purpose of taking submissions.

3. The Respondent is to pay the costs of the Applicant and the Independent Children’s Lawyer thrown away fixed in the sum of $278.00 each.

4. The Respondent is allowed one (1) month to pay the costs of $556.00.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1426 of 2015

MS TALINES

Applicant

And

MR KNOWLES

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Respondent to re-open the proceedings in order to make further submissions, although the Respondent denies that it is. The Application is opposed by the Independent Children’s Lawyer and the Applicant’s legal representative, who appeared by leave.

Background

1. The Substantive Application is an Application by the mother for parenting orders in relation to the parties’ son. An interim hearing took place on Monday 15 June and submissions were received from the parties.

2. The Applicant was represented by her solicitor, Mr McDonald. The Respondent was represented at the time by Mr Fernie, solicitor, who appeared as agent for the Respondent’s then solicitor, Mr Cohen. The Independent Children’s Lawyer was represented by Ms Murphy of Counsel.

3. After the hearing concluded, I reserved my decision until this morning at 10:00 am, when I indicated I would hand down a decision.

4. Yesterday, 16 June 2015, the Respondent’s solicitor, Mr Cohen, filed a Notice of Withdrawal.

5. This morning, when the matter was listed for decision, the Respondent appeared in person. He told the Court that he no longer had legal representation and sought to provide a further written submission.

6. This application was opposed both by the Independent Children’s Lawyer, and Mr Davies, who was appearing to take judgment. He is not the solicitor who had carriage of the matter and appeared by leave, as he told the Court that he had been admitted but did not yet have a practising certificate.

7. After hearing the submissions by the Respondent and the two legal representatives as to why the Respondent should be permitted to make further submissions, I read his written submission for the purpose of deciding whether the application to re-open should be refused or granted. I decided that in the interests of the administration of justice that the application to re-open should be granted.

Application to re-open  

1. The Respondent maintained his denial that he was seeking to re-open proceedings, saying that he was merely seeking to make further submissions for the Court to consider before handing down judgment on the interim issues. If that is not an application to re-open, I am at a loss to understand what it is.

2. The Respondent’s written submission contains criticisms of his former legal representatives as to the conduct of the case and seeks to comment on the evidence tendered. His submission makes a number of criticisms of the manner in which the Independent Children’s Lawyer conducted the case and his views as to the evidence which should have been led but was not, and the evidence which was admitted without objection, which should have been the subject of objection.

3. The application to re-open was opposed by the Independent Children’s Lawyer, supported by Mr Davies for the Applicant, on the basis that re-opening the proceedings would lead to unnecessary delay and the proceedings are urgent.

4. In my view, procedural fairness requires that the Respondent be given the opportunity to make his submissions, now that he has provided a copy of those written submissions to the other parties.

5. However, as this application has been made at the last minute without any warning to the other parties, procedural fairness requires that they should be given the opportunity to meet the case that the Respondent is now seeking to make. Noting the submissions about the urgency of the matter and the need for an early decision, I have decided to hear the re-opened case at 10:00 am tomorrow.

Costs

1. The application by the Respondent to reopen the proceedings will sound in costs. The Respondent has argued that he should not pay the costs of the other parties because the application to re-open is not his fault. Presumably, it is the fault of his former legal advisers, because there has been no action by the other parties to delay the proceedings. This application by the Respondent, brought at the last moment, has had the inevitable result of requiring an adjournment.

2. Costs in proceedings under the Family Law Act 1975 (Cth) are governed by s.117 of that Act. Subsection 117(2) provides that:

   If, in any 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), (4A) 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.

3. The only subsection referred to in s.117(2) that is relevant in this case is subsection 117(2A), which sets out considerations to which the court shall have regard. I have considered them all, but the relevant consideration is set out in paragraph 117(2A)(c), which says:

   (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.

4. As I indicated earlier, the conduct of a party in seeking to re-open proceedings immediately prior to the handing down of judgment, necessitating an adjournment, must by definition sound in costs.

5. I am of the opinion that there are circumstances that justify the Court in making an order that the Respondent should pay the costs of the Applicant and the Independent Children’s Lawyer thrown away by his application to re-open the proceedings.

6. Costs will be awarded on a party and party basis in accordance with Part 1 of Schedule 1 of the Rules. I propose to allow the amount provided by Item 13 for a short mention, being $278.00 in respect of the Applicant and the Independent Children’s Lawyer.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  18 June 2015